In Re Conservatorship of Annette H. Cross

10/09/2020

IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs December 2, 2019

IN RE CONSERVATORSHIP OF ANNETTE H. CROSS

Appeal from the Probate Court for Shelby County

No. C-2645 Karen D. Webster, Judge

___________________________________

No. W2018-01179-COA-R3-CV

___________________________________

The trial court entered summary judgment in favor of Appellees in this long and storied

family dispute over the conveyance of real property held in a testamentary trust. The trial

court also awarded Appellees’ attorneys’ fees. We affirm both the award of summary

judgment and the award of attorneys’ fees.

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

and Remanded.

CARMA DENNIS MCGEE, J., delivered the opinion of the court, in which JOHN W.

MCCLARTY, J., joined. RICHARD H. DINKINS, J., not participating.

Andre C. Wharton, Memphis, Tennessee, for the appellant, Estate of Barbara Pinson.

Allan J. Wade and Brandy S. Parrish, Memphis, Tennessee, for the appellee, Teresa Gibbs.

Richard S. Townley, Memphis, Tennessee, for the appellee, Cleveland Gibbs.

OPINION

I. BACKGROUND FACTS & PROCEDURAL HISTORY

This appeal is the latest chapter in a contentious family battle over a 3.43-acre tract

of real property at the intersection of Berryhill Road and Highway 64 in Cordova,

Tennessee, (“the Berryhill property”) which was left to a testamentary trust by the parties’

mother/grandmother, Verlie Cunningham Harris (“Ms. Harris”). Those background facts

and portions of the procedural history that are relevant to our disposition of the issues raised

in this appeal are largely undisputed.

Ms. Harris died testate in May 1998. She was survived by three daughters, Teresa

Gibbs (“Ms. Gibbs”), Barbara Pinson (“Ms. Pinson”), and Annette Cross (“Ms. Cross”;

collectively, “the sisters”). In her last will and testament, Ms. Harris devised the Berryhill

property to a testamentary trust (“the Trust”) for the support of Ms. Cross for her lifetime.

The Trust was to terminate upon the death of Ms. Cross, and all remaining trust assets were

to be distributed to any children of Ms. Cross and to Ms. Gibbs and Ms. Pinson, per stirpes.

The will appointed Ms. Gibbs as both the executrix and trustee. The terms of the Trust

endowed the trustee with the “absolute and unfettered discretion” to determine whether

Ms. Cross, who was under disability, needed support services or provisions from trust

assets and to “amend the terms . . . in the event of changed circumstances to comply with

the original intent.” The family’s feud began shortly after Ms. Harris’s death.

When Ms. Harris died, Ms. Cross and Ms. Pinson were residing with her in the

family home on the Berryhill property. Ms. Gibbs and her family resided next door. Ms.

Pinson and Ms. Cross continued to reside in the family home. A conservatorship was

established for Ms. Cross in October 2000. Ms. Pinson’s daughter, Denise Pinson

(“Denise”),1 and Ms. Gibbs’ son, Cleveland Gibbs (“Cleveland”), were appointed co-

conservators. Denise moved into the home sometime in 2000.

Difficulties stemming from the conservatorship arose soon thereafter. In June 2001,

Ms. Cross’s court-appointed Guardian ad Litem (“GAL”) reported that Ms. Cross protested

the appointment of Denise as co-conservator; that Ms. Cross alleged physical abuse and

deprivation of food and medicine by Denise; and that Ms. Cross had moved into Ms. Gibbs’

home. The GAL also noted that controversy had arisen over some of the expenditures

made by Ms. Gibbs in her capacity as executrix, and with respect to whether those funds

should be reimbursed to the Trust. The GAL reported, however, that Ms. Gibbs had cared

for Ms. Harris and Ms. Cross for “many years” prior to Ms. Harris’s death, and that Ms.

Gibbs had paid for the maintenance of Ms. Harris’s property as well as for property

inherited by the three sisters following their father’s death. The GAL noted that Ms. Cross

was unable to assist in these responsibilities, and that Ms. Pinson “simply ha[d] not done

so.” She also reported that Ms. Gibbs was caring for Ms. Cross without the use and benefit

of financial assistance, that Ms. Cross was covered by Medicare but not TennCare, and that

coverage was insufficient to meet Ms. Cross’s medical needs.

In July 2001, the Shelby County Probate Court appointed Tyrone Paylor, Esq. (“Mr.

Paylor”), to act as Ms. Cross’s independent conservator only with respect to the potential

sale of the undeveloped property on Mt. Pisgah Road (“the Mt. Pisgah property”) that

passed to the sisters upon their mother’s death. In November 2001, Mr. Paylor was

appointed conservator of the estate, or property, of Ms. Cross, and Ms. Gibbs was

1

Because a number of individuals share the last names Gibbs and Pinson, we will refer to Denise

Pinson and Cleveland Gibbs by their first names. We intend no disrespect.

-2-

appointed conservator of her person. The Mt. Pisgah property was valued at approximately

$1,000,000, and the GAL reported that the Berryhill property “ha[d] a conservative value

of $89,900” according to the records of the Shelby County Assessor of Property. The

guardian observed, however, that no recent appraisal had been done and that “the property

[was] sitting in a hot area that [was] being aggressively developed and may be worth a lot

more than is stated.” A September 2001 appraisal of the property estimated the market

value of the property to be in excess of $2.2 million assuming that it was re-zoned from

residential to commercial and further assuming that appropriate work was done to bring it

to road grade. The Berryhill property was listed for sale, but did not sell before Ms. Harris’s

estate was closed, and the property transferred to the Trust in 2004.

In the meantime, after protracted contention between and amongst the parties with

respect to both tracts of real property, the Trust, and the care and support of Ms. Cross, Ms.

Gibbs filed a complaint for the sale and partition of the Mt. Pisgah property in April 2003.

The Mt. Pisgah property was finally sold in January 2004 for $1.3 million, and the assets

were distributed among the sisters. In June 2004, the Shelby County Assessor of Property

appraised the market value of the Berryhill property at $101,900. In November 2005, Ms.

Gibbs sold the Berryhill property to her son, Cleveland, for $78,000, but Ms. Pinson and

Denise continued to reside in the property. In July 2008, Robert T. Condo (“Mr. Condo”)

was appointed conservator of the estate of Ms. Cross.2

In May 2009, Cleveland filed a detainer warrant against Ms. Pinson and Denise

(collectively, “the Pinsons”) in the Shelby County General Sessions Court. On August 17,

2009, Mr. Condo filed a petition in the probate court to compel a trust accounting, set aside

the deed conveying the Berryhill property, remove the trustee, and for damages arising

from breach of fiduciary duty. On August 28, the Pinsons, acting through counsel, moved

the general sessions court to remove the detainer matter to probate court. The general

sessions court denied the motion and entered judgment in favor of Cleveland Gibbs the

same day. The Pinsons appealed the matter to the Shelby County Circuit Court, and

Cleveland amended his complaint to include a claim for damages. In June 2010, the circuit

court entered final judgment in favor of Cleveland for a writ of possession and damages in

the amount of $38,815.81. That judgment was not appealed, and Cleveland filed a

garnishment against funds generated by the sale of the Mt. Pisgah property held by the

probate court for Ms. Pinson’s benefit.

After receiving the levy from the circuit court, in August 2010 the probate court

entered an order of reference to the special master to determine whether Ms. Pinson was

alive and whether she was disabled. In its order, the probate court noted that it had been

holding monies from the sale of the Mt. Pisgah property for Ms. Pinson’s benefit since

2004 and that Ms. Pinson had not responded to correspondence. Following reports of the

special master and GAL, in December 2010 the probate court appointed Ruby R. Wharton

2

Ms. Gibbs continued to serve as conservator of the person of Ms. Cross.

-3-

(“Ms. Wharton”) as conservator of the Estate of Ms. Pinson and George Pinson, II, as

conservator of her person. The probate court authorized Ms. Wharton to take appropriate

action with respect to the Berryhill property and to take actions necessary to address the

levy on funds held by the court. The probate court noted that it was unknown whether

funds from the sale of the Berryhill property had in fact been paid. In February 2011, the

probate court determined that the sale of the Berryhill property should be “reviewed

closely” and entered an order allowing Ms. Wharton to hire legal counsel.

In April 2011, Ms. Wharton, acting as conservator of Ms. Pinson, filed a motion

pursuant to Rule 60 of the Tennessee Rules of Civil Procedure to set aside the June 2010

judgment of the circuit court awarding damages to Cleveland. In her motion, Ms. Wharton

asserted that the 2005 conveyance to Cleveland took place without court approval and

without notice to Ms. Pinson; that a petition to set aside the deed was pending in the probate

court prior to entry of the general sessions court’s judgment; and that Ms. Pinson was under

a disability and did not make an appearance in the matter. As far as we can ascertain from

the record transmitted to us on appeal, the Rule 60 motion has not been adjudicated by the

circuit court.

In October 2011, the probate court entered an order allowing the Conservatorship

of Barbara Pinson to intervene in the pending August 2009 petition to set aside the deed

filed by Mr. Condo as conservator of the estate of Ms. Cross. In January 2012, Ms.

Wharton, acting as conservator of the Estate of Ms. Pinson, filed a cross-petition against

Ms. Gibbs and Cleveland to compel accounting and set aside the deed. In her petition, Ms.

Wharton asserted that Ms. Gibbs had breached her fiduciary duty by selling the Berryhill

property “in a bargain sale to her son, Cleveland Gibbs[,]” and prayed for the deed to be

set aside.

While the matter was pending in the probate court, Ms. Cross died on February 12,

2012, and Ms. Pinson died on October 13, 2012. On February 23, 2012, Ms. Wharton filed

a motion to substitute the Estate of Annette Cross for the Conservatorship of Annette Cross

in the pending proceeding. Ms. Wharton and George Pinson, II, were appointed

administrators of Ms. Pinson’s estate in March 2013. The 2009 petition filed by Mr. Condo

had not been adjudicated by the trial court, and this matter proceeded on the January 2012

cross-petition filed by Ms. Wharton.

The probate court entered a scheduling order in August 2017.3 In December 2017,

Ms. Gibbs filed a motion for summary judgment based on the statute of limitations

contained at Tennessee Code Annotated section 35-15-1005, and Cleveland filed a motion

for summary judgment asserting the doctrine of res judicata. Ms. Pinson’s estate filed

responses in opposition in January 2018. Following a hearing on February 16, 2018, the

3

From the record before us, it is unclear what events transpired between March 2013 and August

2017.

-4-

probate court awarded Ms. Gibbs summary judgment based on the expiration of the statute

of limitations, awarded Cleveland summary judgment based on the doctrine of res judicata,

and assessed attorneys’ fees and costs against the Estate of Barbara Pinson. The probate

court’s order that granted summary judgment stated “[t]hat the Estate shall pay all

attorney’s fees, the amounts of which shall be determined at a subsequent hearing by this

Court, if necessary.” Finding no just reason for delay, the trial court made the judgment

final pursuant to Rule 54.02 of the Tennessee Rules of Civil Procedure. The Estate of

Barbara Pinson timely appealed.

After the Estate of Barbara Pinson appealed, this Court determined that the probate

court’s judgment was not final because it did not determine the amount of attorneys’ fees

that would be assessed against the Estate of Barbara Pinson. Rather than dismiss the entire

appeal, this Court allowed the parties an opportunity to obtain a final judgment from the

probate court on the issue of attorneys’ fees. Thereafter, Cleveland submitted a motion for

attorney fees for work expended at the summary judgment phase. In support of this motion,

he also filed an affidavit from his attorney, Richard S. Townley. Ms. Gibbs also motioned

the court to award her attorneys’ fees for the summary judgment proceedings. In support

of her request for attorney’s fees, Ms. Gibbs submitted an affidavit from her counsel, Allan

J. Wade, and a declaration from an independent attorney, Robert L.J. Spence, Jr., that

attested to the reasonableness of Mr. Wade’s fees.4 The Estate of Barbara Pinson objected

to the requests for attorneys’ fees, but it did not contest the reasonableness of the amounts

requested.

On June 17, 2020, the probate court held a telephonic hearing on the issue of

attorneys’ fees. In a written order entered on June 25, 2020, the probate court awarded

attorneys’ fees to Ms. Gibbs and Cleveland under Tennessee Code Annotated section 35-

15-1004(a). The court applied the factors listed in Tennessee Rule of Professional Conduct

1.5—as interpreted by Wright ex rel. Wright v. Wright, 337 S.W.3d 166, 176-77 (Tenn.

2010)—and determined the fees requested were reasonable, necessary, equitable, and

properly supported. Assessing the fees against the Estate of Barbara Pinson, the court

awarded Ms. Gibbs $28,115 and Cleveland $1,950.

Now that the trial court has determined the issue of attorneys’ fees, the case is

properly before this Court.

II. ISSUES PRESENTED

In its principal brief, the Estate of Barbara Pinson (hereinafter, “Appellant”) raised

4

The probate court did not receive the Affidavit of Allan J. Wade and the Declaration of Robert

L.J. Spence, Jr. until after the hearing on the issue of attorneys’ fees. However, the court received and

reviewed the materials before entering the final written order on the issue.

-5-

the following issues for our review:5

1. Whether the final judgment granting appellees’ motions for summary

judgment was proper when the applicable statute, T.C.A. § 35-15-1005,

given the evidence in the record, does not support the trial court’s finding

on summary judgment that a one-year statutory limit applies; and

2. Whether the trial court erred and misapplied the doctrine of res judicata

since allegations of fraud were present and the final judgment from

Shelby County Circuit Court, as appealed from Shelby County General

Sessions civil court, did not address the same issues or parties as raised

in and before Shelby County Probate Court.

In its supplemental brief, Appellant raises an additional issue:

1. Whether the trial court erred in granting attorney’s fees when the

appellees failed to offer sufficient proof that justice and equity warranted

the granting of fees when no proof was offered showing that the trustee’s

actions or omissions at issue inured to the benefit of the trust or its

beneficiaries.

Ms. Gibbs raises the additional issue of whether this Court has subject matter

jurisdiction over this appeal.

III. STANDARD OF REVIEW

Our review of a trial court’s disposition of a motion for summary judgment is de

novo upon the record, with no presumption of correctness. Kershaw v. Levy, 583 S.W.3d

544, 547 (Tenn. 2019). Summary judgment is appropriate if “the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled

to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. When the party that moves for

summary judgment does not bear the burden of proof at trial, it “may satisfy its burden of

production either (1) by affirmatively negating an essential element of the nonmoving

party’s claim or (2) by demonstrating that the nonmoving party’s evidence at the summary

judgment stage is insufficient to establish the nonmoving party’s claim or defense.” Rye

v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015) (emphasis

in original). The party opposing a properly supported motion for summary judgment “‘may

not rest upon the mere allegations or denials of [its] pleading,’ but must respond, and by

5

Appellant raised an additional issue regarding attorneys’ fees in her principal brief, which was

rendered moot by our Order to Obtain Final Judgment filed on April 28, 2020. Following entry of a final

judgment by the trial court, Appellant raised the issue of fees again in her supplemental filing.

-6-

affidavits or one of the other means provided in Tennessee Rule 56, ‘set forth specific facts’

at the summary judgment stage ‘showing that there is a genuine issue for trial.’” Id. at 265

(quoting Tenn. R. Civ. P. 56.06). “The nonmoving party ‘must do more than simply show

that there is some metaphysical doubt as to the material facts.’” Id. (quoting Matsushita

Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. 1348 (1986)). Rather, “[t]he nonmoving party

must demonstrate the existence of specific facts in the record which could lead a rational

trier of fact to find in favor of the nonmoving party.” Id.

IV. DISCUSSION

A. Subject Matter Jurisdiction

We first turn to Ms. Gibbs’ assertion that this Court does not have subject matter

jurisdiction to adjudicate this matter. Subject matter jurisdiction concerns a court’s

authority to adjudicate a matter, and an appellate court is required to consider whether it

has subject matter jurisdiction regardless of whether the issue is raised by the parties. Tenn.

R. App. P. 13(b); In re Estate of Trigg, 368 S.W.3d 483, 489 (Tenn. 2012). “A court

derives subject matter jurisdiction, either explicitly or by necessary implication, from the

Constitution of Tennessee or from a statute enacted by the Tennessee General Assembly

or Congress. The parties cannot confer subject matter jurisdiction on a trial or appellate

court by appearance, plea, consent, silence, or waiver.” Id. (citations omitted). When

determining whether it has subject matter jurisdiction over a particular case, the court must

examine “(1) the nature or gravamen of the cause of action, (2) the nature of the relief being

sought, and (3) the constitutional or statutory provisions relied upon by the plaintiff.” Id.

(citations omitted). These questions involve questions of law which we review de novo,

with no presumption of correctness for any determination of the trial court. Id. (citations

omitted).

Ms. Gibbs’ argument with respect to subject matter jurisdiction, as we understand

it, is that this action to set aside the sale of the real property was initiated by Ms. Wharton

in her capacity as conservator of Barbara Pinson in January 2012, that the conservatorship

ended when Ms. Pinson died in late 2012, and that Ms. Wharton failed to file a motion to

substitute the Estate of Barbara Pinson as a party. Ms. Gibbs concludes that the

conservatorship lost standing to prosecute the matter following Ms. Pinson’s death. Ms.

Gibbs further asserts that, even assuming the Estate of Barbara Pinson was properly

substituted as a party, it is not a proper party and has no standing to prosecute this matter.

She contends that Ms. Pinson’s children are the only persons with standing to be substituted

for the conservatorship to establish their remainder interest in the real property following

Ms. Pinson’s death. Ms. Gibbs asserts that, when the trial court entered final judgment in

the matter and the notice of appeal was filed, the Estate of Barbara Pinson was not a party

and would not have been a proper party. She asserts that the Estate of Barbara Pinson

accordingly lacked standing when it filed this appeal.

-7-

We observe that Ms. Gibbs’ argument is predicated on the doctrine of standing, an

issue which she raises for the first time on appeal. She does not contend that this Court

does not have jurisdiction over the nature of the cause of action or the nature of the relief

sought. Rather, she asserts that, because the Estate lacks standing, this Court does not have

subject matter jurisdiction to adjudicate the issues raised on appeal.

“[T]he issue of standing is interwoven with that of subject matter jurisdiction and

becomes a jurisdictional prerequisite” only when “a statute creates a cause of action and

designates who may bring an action.” Bowers v. Estate of Mounger, 542 S.W.3d 470, 480

(Tenn. Ct. App. 2017) (citing See In re Estate of Smallman, 398 S.W.3d 134, 149 (Tenn.

2013). That is not the case here. Unlike subject matter jurisdiction, “standing is a judge-

made doctrine used to determine whether a particular plaintiff is entitled to judicial relief.”

SunTrust Bank, Nashville v. Johnson, 46 S.W.3d 216, 222 (Tenn. Ct. App. 2000) (citations

omitted). Ms. Gibbs conflates the doctrine of standing with this Court’s subject matter

jurisdiction to adjudicate the issues raised on appeal. Further, Ms. Gibbs failed to raise the

issue of standing in the trial court, and the issue “may not be raised for the first time on

appeal.” In re Estate of Smallman, 398 S.W.3d 134, 148 (Tenn. 2013). This argument is

without merit. We accordingly turn to whether the trial court erred by awarding summary

judgment to Ms. Gibbs based on the statute of limitations.

B. Statute of Limitations

1. Controlling Statute

Without citation to authority to support her position, Appellant asserts that the trial

court erred by applying the statute of limitations provided by Tennessee Code Annotated

§ 35-15-1005 as amended in 2017 to this matter, rather than the version that existed when

Appellant filed her petition in 2012. Thus, we turn first to which version of section 35-15-

1005 is applicable to this matter. The construction of a statute, including which statutory

version is applicable to a matter, is a question of law that we review de novo, with no

presumption of correctness. In re Harris, No. 01A01-9901-CV-00017, 1999 WL 548521,

at *1 (Tenn. Ct. App. July 29, 1999) (citing State v. Levandowski, 955 S.W.2d 603, 604

(Tenn.1997)).

Our supreme court has held:

[g]enerally[,] statutes are presumed to operate prospectively and not

retroactively. Woods v. TRW, Inc., 557 S.W.2d 274, 275 (Tenn. 1977); Cates

v. T.I.M.E., DC, Inc., 513 S.W.2d 508, 510 (Tenn. 1974). An exception

exists, however, for statutes which are remedial or procedural in nature. Such

statutes apply retrospectively, not only to causes of action arising before such

acts become law, but also to all suits pending when the legislation takes

effect, unless the legislature indicates a contrary intention or immediate

-8-

application would produce an unjust result. Saylors v. Riggsbee, 544 S.W.2d

609, 610 (Tenn. 1976).

C.W.H. v. L.A.S., 538 S.W.3d 488, 497-98 (Tenn. 2017). The Court has defined

“procedure” as:

[T]he mode or proceeding by which a legal right is enforced, as distinguished

from the law which gives or defines the right, and which by means of the

proceeding, the court is to administer—the machinery, as distinguished from

its product; . . . including pleading, process, evidence, and practice. . . .

Practice [is] the form . . . for the enforcement of rights or the redress of

wrongs, as distinguished from the substantive law which gives the right or

denounces the wrong . . . .

Id. at 498 (quoting Saylors, 544 S.W.2d at 610) (alterations in original).

This Court has noted that “[t]he demarcation between laws that are substantive and

those that are procedural is not always clear.” SunTrust Bank v. Ritter, No. E2017-01045-

COA-R3-CV, 2018 WL 674000, at *3 (Tenn. Ct. App. Feb. 1, 2018) (citing Boswell v.

RFD-TV the Theater, LLC, 498 S.W.3d 550, 556 (Tenn. Ct. App. 2016)). Statutes of

limitations, however, generally “are considered procedural matters[.]” Id. at *4. “[T]hey

merely extinguish a party’s remedy for a cause of action, not the rights giving rise to a

cause of action.” Id. Thus, the version of the statute of limitations in effect when this

matter was adjudicated in 2018 was applicable to Appellant’s 2012 petition. The trial court

applied the correct version of the statute in this case.6

2. Tennessee Code Annotated section 35-15-1005 (2017).

We turn next to Appellant’s alternate argument that the trial court erred by awarding

summary judgment to Ms. Gibbs under section 35-15-1005 as amended in July 2017. The

section in effect when this matter was adjudicated provided:

(a) A beneficiary, trustee, trust advisor, or trust protector shall not commence

a proceeding against a trustee, former trustee, trust advisor, or trust protector

for breach of trust more than one (1) year after the earlier of:

(1) The date the beneficiary, trustee, trust advisor, or trust protector or a

representative of the beneficiary, trustee, trust advisor, or trust protector

was sent information that adequately disclosed facts indicating the

existence of a potential claim for breach of trust; or

(2) The date the beneficiary, trustee, trust advisor, or trust protector or a

6

Tennessee Code Annotated section 35-15-1005 was subsequently amended effective May 10,

2019. 2019 Pub. Acts, c. 340 § 12.

-9-

representative of the beneficiary, trustee, trust advisor, or trust protector

possessed actual knowledge of facts indicating the existence of a

potential claim for breach of trust.

(b) For purposes of this section, facts indicate the existence of a potential

claim for breach of trust if the facts provide sufficient information to enable

the beneficiary; trustee; trust advisor; trust protector; or the representative of

the beneficiary, trustee, trust advisor, or trust protector to have actual

knowledge of the potential claim, or have sufficient information to be

presumed to know of the potential claim or to know that an additional inquiry

is necessary to determine whether there is a potential claim.

(c) If subsection (a) does not apply, a judicial proceeding against a trustee,

former trustee, trust advisor, or trust protector for breach of trust must be

commenced within three (3) years after the first to occur of:

(1) The removal, resignation, or death of the trustee, former trustee, trust

advisor, or trust protector;

(2) The termination of the beneficiary’s interest in the trust; or

(3) The termination of the trust.

(d) Notwithstanding subsections (a)-(c), no trustee, trust advisor, or trust

protector may commence a proceeding against a trustee or a former trustee

if, under subsection (a), (b), or (c), none of the beneficiaries would be entitled

to commence a proceeding against a trustee or a former trustee for a breach

of trust.

Tenn. Code Ann. § 35-15-1005 (2017).

Applying the language in subsection (b), Ms. Pinson had “sufficient information to

be presumed to know of the potential claim or to know that an additional inquiry is

necessary to determine whether there is a potential claim[]” at least by May 2009, when

Cleveland filed the detainer action in general sessions court; at the latest, when her legal

counsel filed a motion to remove the matter to the probate court in August 2009; and at the

earliest in November 2005, when Ms. Gibbs sold the Berryhill property to Cleveland

Gibbs. Appellant asserts, however, that the claim against Ms. Gibbs is not time-barred

because the 2009 petition filed by Mr. Condo as conservator of Ms. Cross “set the stage,”

and Ms. Pinson subsequently intervened in the matter in April 2011. Appellant’s argument,

as we perceive it, is that because Mr. Condo’s petition was timely filed, and because it

relates to the same claims, Ms. Pinson’s April 2011 motion allows Appellant to “step[] into

the shoes of the Estate of Annette Cross and prosecute[] that claim.”

As Appellant asserts in her brief, the trial court did not address the relevance of the

“Condo Petition.” Upon review of Appellant’s response and memorandum in opposition

to Ms. Gibb’s motion for summary judgment and the trial court’s extremely detailed

memorandum opinion of May 2018, which the trial court incorporated into its final

judgment, it does not appear that this “relation back” argument was asserted in the trial

- 10 -

court. Although Appellant referenced Ms. Pinson’s 2011 intervention in the 2009 petition

in her response to Ms. Gibbs’ motion for summary judgment, Appellant relied on section

35-15-1005 as it existed prior to the 2017 amendments in support of her proposition that

the 2012 petition was not time-barred. In her March 2018 supplemental memorandum in

response to Ms. Gibbs and Cleveland’s motions for summary judgment, Appellant asserted

that the statute of limitations could not be applied retroactively and that the statute as

amended in 2017 accordingly was inapplicable. Additionally, as noted above, it does not

appear that an intervening petition was in fact filed in the trial court. Ms. Gibbs asserts

that an intervening petition was not filed, and that Appellant’s 2012 cross-petition to set

aside the deed was the only petition before the court. In her reply brief, Appellant does not

contend that an intervening petition was filed, but asserts that the 2012 cross-petition had

the same effect.

It appears that Appellant’s 2012 cross-petition was the only petition before the court

when this matter was heard in February 2018. Whether that cross-petition should somehow

be construed as an intervening petition was not raised as an issue in the trial court. It is

well-settled that an issue cannot be raised for the first time on appeal. Watson v. Waters,

375 S.W.3d 282, 290 (Tenn. Ct. App. 2012). Similarly, “arguments not asserted at trial

are deemed waived on appeal.” Villages of Brentwood Homeowners Ass’n, Inc. v.

Westermann, No. 01A01-9708-CH-00388, 1998 WL 289342, at *2 (Tenn. Ct. App. June

5, 1998). We accordingly deem this argument waived.

3. Ms. Pinson’s Disability

Appellant further asserts that Ms. Pinson was operating under a disability when this

matter accrued, and that the trial court erred by failing to consider that disability for the

purposes of tolling the statute of limitations under Tennessee Code Annotated section 28-

1-106. She contends that, although Ms. Pinson’s attorney and conservator had actual notice

of the transfer of the Berryhill property to Cleveland Gibbs “at various times in 2009-

2010,” the trial court did not address whether Ms. Pinson was operating under a disability

at that time. Appellant asserts, “[c]ertain indicia should have given the court, or others,

pause that something was not right with Barbara Pinson[]” in 2009.

We observe that Section 28-1-106 was amended twice since the time this action

accrued, which the parties appear to agree was when the detainer action was filed in May

2009. The most recent version of the statute, effective April 27, 2016, is not applicable to

this case because it applies “only to causes of action filed on or after” that date. 2016 Pub.

Act. 932 § 2; Woodruff by and through Cockrell v. Walker, 542 S.W.3d 486, 496 n.7 (Tenn.

Ct. App. 2017). The version of the section as it existed when this action accrued in 2009

provided:

If the person entitled to commence an action is, at the time the cause of action

accrued, either within the age of eighteen (18) years, or of unsound mind,

- 11 -

such person, or such person’s representatives and privies, as the case may be,

may commence the action, after the removal of such disability, within the

time of limitation for the particular cause of action, unless it exceeds three

(3) years, and in that case within three (3) years from the removal of such

disability.

Tenn. Code Ann. § 28-1-106 (2009). The section as amended effective July 1, 2011, and

in effect when Appellant filed her petition in 2012, provided:

If the person entitled to commence an action is, at the time the cause of action

accrued, either under eighteen (18) years of age, or adjudicated incompetent,

such person, or such person’s representatives and privies, as the case may be,

may commence the action, after legal rights are restored, within the time of

limitation for the particular cause of action, unless it exceeds three (3) years,

and in that case within three (3) years from restoration of legal rights.

Tenn. Code Ann. § 28-1-106 (2012) (emphasis added). The parties disagree with respect

to whether the version as amended in 2011 or the version in effect when the action accrued

in 2009 is applicable to this matter. The version of the statute as amended in 2011 required

an adjudication of incompetency, while the version in effect in 2009 did not.

Appellant asserts in her reply brief that the version of the statute in effect in 2009 is

applicable to this case, and that no adjudication of incompetency therefore was required to

toll the limitations period. She asserts that Ms. Pinson was of unsound mind when this

action accrued in 2009, and that the limitations period accordingly was tolled. Appellant

cites no case law to support this assertion, however, and we find none.

It is undisputed that Ms. Pinson had not been adjudicated incompetent prior to the

appointment of a conservator in December 2010. Moreover, upon review of the

voluminous record in the case, we find no proof that Ms. Pinson was of “unsound mind”

in November 2005, when the Berryhill property was conveyed to Cleveland Gibbs, or in

2009, when the detainer warrant was adjudicated. In her response to Ms. Gibbs’ statement

of undisputed facts, Appellant did not dispute that Ms. Pinson retained an attorney to

represent her in the 2009 detainer action. While not conclusive, the fact that Ms. Pinson

had the capacity to engage legal representation to protect her interests is some evidence of

soundness of mind when this cause of action accrued. See In re Estate of Eden, 99 S.W.3d

82, 90 (Tenn. Ct. App. 1995) The fact that legal counsel accepted representation in the

matter is additional evidence that Ms. Pinson was of sound mind in 2009. See Sup. Ct.

Rules, rule 8, Rules of Prof. Conduct, Rule 1.14.

Whether a limitations period should be tolled under section 28-1-106 is a question

of fact, and the party seeking application of the statute bears the burden of proof. Sherrill

v. Souder, 325 S.W.3d 584, 603 (Tenn. 2010). The party opposing a motion for summary

- 12 -

judgment must “‘set forth specific facts’ at the summary judgment stage ‘showing that

there is a genuine issue for trial.’” Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477

S.W.3d 235, 265 (Tenn. 2015) (quoting Tenn. R. Civ. P. 56.06). Although Appellant

asserted mental incapacity several times in her response in opposition to Ms. Gibbs’ motion

for summary judgment, she offered no facts to demonstrate Ms. Pinson’s incapacity.

Additionally, the Statement of the Case included in Appellant’s brief is exceedingly

condensed, and refers us to no pleading or motion to indicate that she asserted the tolling

statute as a defense to the limitations period or that she offered proof of incapacity during

the relevant period. Accordingly, regardless of which version of the statute is applicable

to this matter, Appellant failed to set-forth specific facts to demonstrate a genuine issue for

trial.

In light of the foregoing, we affirm the trial court’s award of summary judgment to

Ms. Gibbs based on the statute of limitations set-forth in Tennessee Code Annotated

section 35-15-1005.

C. Res Judicata

We turn next to whether the trial court erred by awarding summary judgment to

Cleveland based on the doctrine of res judicata. “The doctrine of res judicata or claim

preclusion bars a second suit between the same parties or their privies on the same claim

with respect to all issues which were, or could have been, litigated in the former suit.”

Jackson v. Smith, 387 S.W.3d 486, 491 (Tenn. 2012) (emphasis added) (citations omitted).

Known as a “rule of rest,” the doctrine “promotes finality in litigation, prevents inconsistent

or contradictory judgments, conserves judicial resources, and protects litigants from the

cost and vexation of multiple lawsuits.” Id. A party who asserts that a claim is res judicata

must show “(1) that the underlying judgment was rendered by a court of competent

jurisdiction, (2) that the same parties or their privies were involved in both suits, (3) that

the same claim or cause of action was asserted in both suits, and (4) that the underlying

judgment was final and on the merits.” Id. Our supreme court has noted that, as a general

rule, “a change in the law occurring after a final judgment ordinarily does not create an

exception to the application of the doctrine of res judicata or claim preclusion.” Id. at 493.

Therefore, a change in the statutes following the conclusion of earlier litigation ordinarily

will not “provide a basis for relitigating the same dispute.” Id. (citing 18 James Wm.

Moore et al., Moore’s Federal Practice §§ 131.21[2], 131.22[3] (3d ed. 2009) (“18

Moore’s Federal Practice”)). The courts have recognized exceptions to this general rule

only on “rare occasions[.]” Id. (footnote omitted). An exception may be applied “when a

new statute provides an independent basis for relief which did not exist at the time of the

prior action.” Id. at 493-94 (quoting 18 Moore’s Federal Practice § 131.22[3]). See also

State ex rel. Cihlar v. Crawford, 39 S.W.3d 172, 178 (Tenn. Ct. App. 2000) (permitting a

second lawsuit after the first lawsuit had been dismissed for lack of standing). A court may

also “relax[]” application of the doctrine “in circumstances in which a party has been

deprived of a fair opportunity to litigate its claim.” Id. at 494 (citing see Kremer v. Chem.

- 13 -

Constr. Corp., 456 U.S. 461, 481 n.22 (1982); 18 Federal Practice and Procedure § 4415,

at 351, 365-66).

Appellant asserts that the doctrine of res judicata is not applicable in this matter

because the general sessions court was not a court of competent jurisdiction, because the

general sessions adjudication was not on the merits, and because the same parties were not

involved in the detainer action and probate court proceedings.

Regardless of the jurisdictional constraints of the general sessions court, an appeal

from general sessions court to circuit court is a de novo appeal. Brown v. Roland, 357

S.W.3d 614, 619 (Tenn. 2012); Ware v. Meharry Med. Coll., 898 S.W.2d 181 (Tenn. 1995)

(adopting Ware v. Meharry Med. Coll., No. 01A01-9304-CV-00149, 1994 WL 108905

(Tenn. Ct. App. Mar. 30, 1994) (Koch, J., dissenting). The Tennessee Supreme Court has

held:

The Tennessee Rules of Civil Procedure favor using a single proceeding to

resolve all the parties’ disputes on the merits. Karash v. Pigott, 530 S.W.2d

775, 777 (Tenn.1975); Quelette v. Whittemore, 627 S.W.2d 681, 682

(Tenn.Ct.App.1981). They govern civil actions appealed to the circuit court.

Tenn. R. Civ. P. 1. Giving them full effect with regard to de novo appeal

from the general sessions courts will not only encourage the parties to select

the most appropriate judicial forum but will also avoid multiple proceedings

to resolve the parties’ disputes when they can be resolved in a single

proceeding.

Ware, 898 S.W.2d at 186 (footnote omitted).

Accordingly, notwithstanding the limitations of general sessions court, a de novo

appeal to the circuit court “provides the parties an entirely new trial as if no other trial had

occurred and as if the case had originated in the circuit court.” Id. at 184 (quoting Lawrence

A. Pivnick, Tennessee Circuit Court Practice, § 3-10, at 115 (3d ed. 1991)). Thus, on

appeal to circuit court, the parties may add additional parties, new causes of action, and

new defenses. Id. at 185. They also may add counterclaims, cross-claims, and third-party

claims. Id.

This Court has had several opportunities to discuss the doctrine of res judicata with

respect to detainer actions. In the context of a defendant’s assertion of fraud to challenge

foreclosure following an unlawful detainer action in general sessions court, we stated:

The Buyers argue about the general sessions court’s jurisdiction, but, as we

have illustrated above, it had subject matter jurisdiction of the detainer

action. It was competent in the detainer action to consider title as a challenge

to the Sellers’ right to possession. The Buyers understandably argue that the

- 14 -

cause of action in the present action is not the same as in the detainer action.

However, the Tennessee Supreme Court has recently redefined the term

“cause of action” broad[ly] enough to connect the detainer action and the

present action. There can be no doubt that the detainer action and the present

action both arose out of the same transaction or series of connected

transactions.

Love v. Fed. Nat’l Mortg. Ass’n, 472 S.W.3d 272, 277-78 (Tenn. Ct. App. 2015) (quoting

Davis v Williams, No. E2010-01139-COA-R3-CV, 2011 WL 335069, at *4 (Tenn. Ct. App.

Jan. 31, 2011)).

In the present case, Appellant could have raised the defense of fraudulent

conveyance in the general sessions court and on appeal to the circuit court but failed to do

so. The current action to set aside the conveyance of the Berryhill property arises out of

the same series of transactions as the 2009 detainer action, and Ms. Gibbs could have been

added as a party on de novo appeal to circuit court. Finally, the same parties or their privies

have been involved in this dispute for over a decade. As we noted above, in 2011 the

Conservatorship of Ms. Pinson sought to intervene in the 2009 petition to set aside the

conveyance filed by Mr. Condo. Ultimately, Ms. Wharton filed a cross-petition seeking

similar relief in January 2012. Although Appellant asserts an absence of privity on the

basis that the interests of Ms. Pinson’s heirs are not identical to those of the

conservatorship, we observe that the petition adjudicated in this matter was the January

2012 cross-petition filed before Ms. Pinson’s death. We additionally note that Ms.

Pinson’s daughter was a party to the 2009 detainer action, and Ms. Pinson’s son was

appointed conservator of Ms. Pinson’s person in 2010.

Tennessee has adopted the “transactional test . . . for determining whether two

proceedings constitute the ‘same cause of action’ for purposes of res judicata.” Hooker v.

Haslam, 393 S.W.3d 156, 165 n.6 (Tenn. 2012). Additionally, in Tennessee, “privity as

used in the context of res judicata does not embrace relationships between persons or

entities, but rather to the subject matter of the litigation.” Phillips v. Gen. Motors Corp.,

669 S.W.2d 665, 669 (Tenn. Ct. App. 1984). See also In re Estate of Goza, No. W2013-

00678-COA-R3-CV, 2014 WL 7235166, at *5 (Tenn. Ct. App. Dec. 19, 2014). The 2009

detainer action and the 2012 cross-petition in probate court arose from the same

transaction: the conveyance of the Berryhill property by Ms. Gibbs to Cleveland. Ms.

Pinson and Appellant, her estate, have the same interest in the Berryhill property: a

remainder interest under the terms of the Trust. Whether the 2005 conveyance should have

been set aside could and should have been litigated in the 2009 action. Indeed, Appellant

moved to remove the detainer action to probate court in order to litigate it within the context

of the Trust, but failed to assert fraudulent conveyance as a defense upon de novo appeal

in the circuit court. We affirm the trial court’s award of summary judgment in favor of

Cleveland based on the doctrine of res judicata.

- 15 -

D. Award of Attorneys’ Fees

We turn finally to whether the trial court erred by awarding attorneys’ fees to Ms.

Gibbs and Cleveland. Appellant argues that the award of attorneys’ fees constituted an

abuse of discretion because there was not sufficient proof to show that “justice and equity”

required the award and because the award will not benefit the Estate of Barbara Pinson.7

Appellant relies on this Court’s holding in In re Estate of Lipscomb in support of her

argument that, in an action involving an estate as a party, an award of attorney’s fees

constitutes an abuse of discretion if the award does not inure to the benefit of the estate.

It is well-settled that Tennessee follows the “American Rule” for awarding

attorneys’ fees. See Cracker Barrel Old Country Store, Inc. v. Epperson, 284 S.W.3d 303,

308 (Tenn. 2009).

Under the American rule, a party in a civil action may recover attorney fees

only if: (1) a contractual or statutory provision creates a right to recover

attorney fees; or (2) some other recognized exception to the American rule

applies, allowing for recovery of such fees in a particular case.

Id. (footnote and citations omitted). The Supreme Court has explained that this rule is

based on a number of public policy considerations.

First, since litigation is inherently uncertain, a party should not be penalized

for merely bringing or defending a lawsuit. Second, the poor might be

unjustly discouraged from instituting actions to vindicate their rights if the

penalty for losing included paying the fees of their opponent’s lawyer. Third,

requiring each party to be responsible for their own legal fees promotes

settlement. Fourth, the time, expense, and difficulty inherent in litigating the

appropriate amount of attorney’s fees to award would add another layer to

the litigation and burden the courts and the parties with ancillary

proceedings. Thus, as a general principle, the American rule reflects the idea

that public policy is best served by litigants bearing their own legal fees

regardless of the outcome of the case.

Id. at 309 (quoting House v. Estate of Edmondson, 245 S.W.3d 372, 377 (Tenn. 2008).

Appellate courts will not interfere with a permissible award of attorney’s fees absent a

showing of abuse of discretion. Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005). The

abuse of discretion standard, however, “does not . . . immunize a lower court’s decision

from any meaningful appellate scrutiny.” Lee Medical, Inc. v. Beecher, 312 S.W.3d 515,

7

In its principal brief, Appellant also argued that the award of attorneys’ fees was improper because

the trial court erred in granting summary judgment. Because we determined summary judgment was proper,

we will not address this portion of Appellant’s argument.

- 16 -

524 (Tenn. 2010)). A trial court’s “[d]iscretionary decisions must take the applicable law

and the relevant facts into account.” Id. “A court abuses its discretion when it causes an

injustice to the party challenging the decision by (1) applying an incorrect legal standard,

(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly

erroneous assessment of the evidence.” Id. (citing State v. Ostein, 293 S.W.3d 519, 526

(Tenn. 2009); Konvalinka v. Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346,

358 (Tenn. 2008); Doe 1 ex rel. Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d

22, 42 (Tenn. 2005)).

Tennessee Code Annotated section 35-15-1004(a) lists a statutory exception to the

“American Rule” on attorneys’ fees. It states, “[i]n a judicial proceeding involving the

administration of a trust, the court, as justice and equity may require, may award costs and

expenses, including reasonable attorney’s fees, to any party, to be paid by another party or

from the trust that is the subject of the controversy.” Tenn. Code Ann. § 35-15-1004(a)

(emphasis added).

We begin our discussion of this issue by noting that the procedural posture of Estate

of Lipscomb bears little resemblance to the current case. In Lipscomb, the administrator of

the estate filed a contempt action against a beneficiary who allegedly violated the trial

court’s restraining order prohibiting the beneficiary from transferring or disposing of assets

of the Estate. In re Estate of Lipscomb, No. W2016-00881-COA-R3-CV, 2018 WL

3084758, at *1 (Tenn. Ct. App. June 21, 2018). The trial court found that, under the

circumstances, “it [was] fair and equitable to require the Estate to pay half of

[Beneficiary’s] attorney’s fees.” Id. at *2 (alterations in original). On appeal, we noted

that the beneficiary’s attorney’s fees were incurred in defense of a contempt petition and

that the trial court had ordered the beneficiary to draft an inventory in an attempt to ensure

that estate property remained in the estate pending further proceedings. Id. at *3. We also

noted that the trial court further advised the beneficiary at the hearing that all estate

property would be surrendered to the control of the personal representative and that any

contested items would be ruled upon at a later date. Id. at *3. In actions such as Lipscomb,

“attorney fees may be awarded to someone other than the administrator of an estate when

the services ‘inured to the benefit of the entire estate’” rather than “individuals claiming

an interest in the estate.” Id. at *2 (emphasis added) (quoting Pierce v. Tharp, 455 S.W.2d

145, 149 (Tenn. 1970)).

Appellant’s reliance on Lipscomb is misplaced. The action in Lipscomb was

initiated to protect assets of the estate. See id. at *1-2. The current case, on the other hand,

is but the latest chapter in an ongoing dispute over the sale of Trust property occurring long

before the decedent’s death. The Trust, moreover, was not established for the decedent’s

benefit, the decedent’s interest in the property was a remainder interest, and the petition

adjudicated was filed before the decedent’s death. Appellant’s argument that attorneys’

fees should not be awarded to Appellees because doing so would not benefit the Estate of

Barbara Pinson is an improper application of the rule stated in Lipscomb. In Lipscomb and

- 17 -

similar cases where the attorney’s services must have benefited the estate in order to award

attorney’s fees, the “estate” that attorneys’ fees were assessed against was directly at issue.

See id. at *1-2. See also In re Conservatorship of Porter, No. W2016-00693-COA-R3-

CV, 2019 WL 1313384, at *1, *3 (Tenn. Ct. App. Mar. 21, 2019) (affirming an award of

attorneys’ fees in an action involving the administration of the estate); In re Estate of

Skinner, No. M2015-00206-COA-R3-CV, 2015 WL 9699937, at *1, *3 (Tenn. Ct. App.

Jan. 11, 2015) (denying an award of attorney’s fees when the underlying action involved

recovering the remains of the decedent); In re Estate of Greenamyre, 219 S.W.3d 877, 886-

87 (Tenn. Ct. App. 2005) (awarding the full amount of attorneys’ fees incurred at the trial

court level). Unlike the estate in Lipscomb, the Estate of Barbara Pinson is not being

administered nor are its assets at issue.

In contrast to the facts of Lipscomb, the underlying action in this case is a cross-

petition that alleged a breach of fiduciary duty by Ms. Gibbs. The petition requested the

trial court to compel trust accounting and set aside the sale of the Berryhill property to

Cleveland. Ms. Pinson passed away nearly nine months after the petition was filed. At the

summary judgment phase, the trial court assessed attorneys’ fees against the Estate of

Barbara Pinson as the opposing party in an action that involves the administration of a

trust, not an action where an estate’s assets or administration was at issue. Had it not been

for the unfortunate passing of Ms. Pinson only months after the petition was filed, her estate

would not be a party to this suit. The trial court ordered an award of attorneys’ fees under

Tennessee Code Annotated section 35-15-1004(a). Furthermore, section 35-15-1004(a) is

appropriately absent from the opinion in Lipscomb. See Lipscomb, 2018 WL 3084758.

Unlike the present case, Lipscomb did not involve the administration of a trust. Here, the

foundation of Ms. Pinson filing her cross-petition was her taking issue with how Ms. Gibbs

administered the Trust as its trustee. Therefore, we find that the rule stated in Lipscomb is

inapplicable to this case.

On April 28, 2020, this Court entered an order that directed the parties to obtain a

final judgment on the issue of attorneys’ fees. Before the trial court, Ms. Gibbs and

Cleveland argued that Tennessee Code Annotated section 35-15-1004(a) entitles them to

attorneys’ fees for the summary judgment proceedings. The trial court agreed and found

the parties’ requests for attorneys’ fees were properly supported by the affidavit of attorney

Allan J. Wade, the declaration of attorney Robert L.J. Spence, Jr., and the affidavit of

Richard S. Townley, Sr. The trial court found that the affidavit of Allan J. Wade provided

sufficient facts that specified the inequity of Ms. Gibbs or the Trust bearing the cost of

attorneys’ fees and expenses.8 In its order on attorneys’ fees, the trial court also took

8

In an effort to limit the spread of COVID-19, the trial court clerk requested that the parties mail

their filings rather than deliver them in-person. As a result, counsel for Ms. Gibbs mailed its filings on

attorneys’ fees to the clerk. The filings included the affidavit of attorney Allan J. Wade, the declaration of

attorney Robert L.J. Spence, Jr., and the response to Appellant’s opposition to awarding fees. These filings

were not received until after the telephonic hearing on the issue. Subsequently, the trial court reviewed and

considered the filings before making a final ruling on the issue. Counsel for Appellant received the filings

- 18 -

judicial notice of its prior orders. Specifically, the court took judicial notice of two orders

that were included in Ms. Gibbs’s supplemental filing. The first order was a March 2013

order that appointed an administrator of the Estate of Barbara Pinson. In the March 2013

order, the court valued the Estate of Barbara Pinson at $400,000. This order was included

in the record in the original summary judgment proceedings. The second order, dated

September 19, 2019, confirmed an annual accounting of the Estate of Barbara Pinson,

which valued the estate at $345,267.74. After considering the filings of Ms. Gibbs and

Cleveland, the trial court awarded Ms. Gibbs attorney fees in the amount of $28,115 and

attorney fees to Cleveland in the amount of $1,950.

From our review of the record, we agree with the trial court’s finding that the

attorney fees and expenses of Ms. Gibbs and Cleveland are reasonable, necessary, and

properly supported. The affidavit of Allan J. Wade addressed several of the factors listed

in Tennessee Rule of Professional Conduct 1.5, as interpreted by Wright ex rel. Wright,

337 S.W.3d at 176-77. In particular, the affidavit stated that Mr. Wade has considerable

experience practicing law; that the case involved unique questions of law; that the

gravamen of the dispute was over the Berryhill Property, which is valued at over $2.24

million; and that based on the significant procedural history in this case, Mr. Wade was

required to expend considerable time prosecuting the motion for summary judgment. The

declaration of Robert L.J. Spence, Jr. addressed many of the same factors and concluded

that Mr. Wade’s fees and expenses were reasonable. In regards to Cleveland’s attorneys’

fees, his request is properly supported by the affidavit of Richard S. Townley. Mr.

Townley’s affidavit details his experience and the work he performed in this case. Aside

from the parties’ filings, the trial court independently considered many of the factors listed

in Rule of Processional Conduct 1.5. The trial court specifically found that the summary

judgment proceedings required significant time and expense from the attorneys, that the

issues were hotly contested, and that the attorneys are experienced and reputable. We agree

with the trial court that the requested fees and expenses are reasonable, necessary, and

properly supported.

Tennessee Code Annotated section 35-15-1004(a) permits an award of attorneys’

fees in cases that involve the administration of a trust, “as justice and equity may require.”

“The determination of whether an award of attorney’s fees is warranted under section 35-

15-1004(a) lies within the sound discretion of the trial court.” In re Estate of Goza, 397

S.W.3d 564, 571 (Tenn. Ct. App. 2012) (citing Morrow v. SunTrust Bank, No. W2010-

01547-COA-R3-CV, 2011 WL 334507, at *8 (Tenn. Ct. App. Jan. 31, 2011)). This Court

has awarded defendants attorneys’ fees under section 35-15-1004(a) in previous cases

where a plaintiff alleged a breach of fiduciary duty. See Cartwright v. Garner, No. W2016-

01424-COA-R3-CV, 2018 WL 4492742, at *1, *9 (Tenn. Ct. App. Sept. 19, 2018);

Cartwright v. Jackson Capital, No. W2011-00570-COA-R3-CV, 2012 WL 1997803, at

*1, *16 (Tenn. Ct. App. June 5, 2012). Appellant initiated the present case under similar

prior to the telephonic hearing on attorneys’ fees.

- 19 -

circumstances, by filing a petition that asserted Ms. Gibbs breached her fiduciary duty as

trustee.

Having determined that this case involves the “administration of a trust” under

section 35-15-1005(a), we also agree with the trial court that justice and equity permit an

award of attorneys’ fees and expenses for Ms. Gibbs and Cleveland. The purpose of the

Trust was to support Ms. Cross during her lifetime. Ms. Gibbs undertook the burden of

helping support Ms. Cross while Ms. Pinson lived on the Berryhill property for free.

Additionally, Ms. Pinson prosecuted this case over several years despite the terms of the

Trust giving Ms. Gibbs the “absolute and unfettered discretion” to act as trustee, which

included the authority to sell the property. Despite Ms. Pinson initiating the action, the

case went dormant for several years, causing a significant delay for all of the parties

involved. Further, the trial court found that the Estate of Barbara Pinson contains

substantial funds. The court made this determination by taking judicial notice of the facts

contained in its prior order, which were filed at the initial summary judgment stage. Taken

together, the trial court did not abuse its discretion in finding justice and equity require

awarding attorneys’ fees to Ms. Gibbs and Cleveland under section 35-15-1004(a).

In protest to the trial court’s award of attorneys’ fees, Appellant argues that the

holding in In re Estate of Roseman, No. M2019-00218-COA-R3-CV, 2019 WL 5078722

(Tenn. Ct. App. Oct. 10, 2019) should control our decision. We disagree. Roseman is a

memorandum opinion and, therefore, has no precedential value. See Ct. App. R. 10; In re

Estate of Roseman, 2019 WL 5078722, at n.1.

There is sufficient evidence in the record to show that the Estate of Barbara Pinson

has sufficient funds to incur Ms. Gibbs and Cleveland’s attorneys’ fees and expenses.

Contrary to Appellant’s argument, the trial court did not render a ruling on attorneys’ fees

prior to it receiving this proof. The court reserved its final ruling on attorneys’ fees until it

received all of the parties’ filings on the matter.

Accordingly, there was sufficient evidence for the trial court to award Ms. Gibbs

and Cleveland attorneys’ fees and expenses. We affirm the trial court’s decision to award

Ms. Gibbs $28,115 in attorney’s fees and expenses and Cleveland Gibbs $1,950 in

attorney’s fees. See Tenn. Code Ann. § 35-15-1004(a); In re Estate of Goza, 397 S.W.3d

at 571; Taylor, 158 S.W.3d at 359.

V. CONCLUSION

In light of the foregoing, we affirm the trial court’s award of summary judgment to

Teresa Gibbs and Cleveland Gibbs. We also affirm the award of attorney’s fees. This

matter is remanded to the trial court for entry of a judgment consistent with this Opinion.

Costs on appeal are taxed to the appellant, Estate of Barbara Pinson, and its surety, for

which execution may issue, if necessary.

- 20 -

_________________________________

CARMA DENNIS MCGEE, JUDGE

- 21 -