IN THE COURT OF APPEALS AT NASHVILLE
ESTATE OF )
FILED
M1999-00678-COA-R3-CV
JACKSON BROWN DIVINNY, ) DAVIDSON COUNTY
) Circuit No: March 31, 2000
Appellee, ) 98P1225
) Cecil Crowson, Jr.
v. ) Appellate Court Clerk
)
WHEELER BONDING COMPANY, INC., )
)
Appellant. )
APPEALED FROM THE PROBATE COURT OF DAVIDSON COUNTY
THE HONORABLE FRANK G. CLEMENT, JR., PROBATE JUDGE
Joel H. Moseley
Moseley & Moseley
Attorneys at Law, P.C.
Suite 300, One Church Street
101 Church Street
Nashville, TN 37201
Attorney for Appellant
Peggy D. Mathes
214 Second Avenue North, Suite 105
Nashville, TN 37201
Attorney for Appellee
REVERSED AND REMANDED
Houston M. Goddard, Presiding Judge
CONCUR:
SUSANO, J.
SWINEY, J.
O P I N I O N
Wheeler Bonding Company, Inc., the Appellant, appeals
the Davidson County Probate Court’s judgment barring its claim
against the Estate of Jackson Brown Divinny, the Appellee, as
untimely filed.
The sole issue presented by WBS is whether a claim
filed by a creditor against an estate within the period
prescribed in a published notice in accordance with Tennessee
Code Annotated § 30-2-306(c) is barred by Tennessee Code
Annotated §§ 30-2-307 or 30-2-310, when probate of the estate was
not sought until more than one year after the decedent’s death.
2
On October 1, 1995, Mr. Divinny entered into a contract
with WBC to guarantee the appearance bond for Denise M. Winn.1
Mr. Divinny’s obligation under the contract was for not only the
amount of the bond but also any expenses incurred by WBC.
When Ms. Winn failed to appear in court and WBC was
unable to locate her, a forfeit judgment in the amount of
$1,038.50 was entered against WBC. WBC paid the judgment on
April 28, 1997.
Mr. Divinny died intestate on March 10, 1997. When no
one came forward to admit Mr. Divinny’s estate to probate, WBC,
which had not been reimbursed for the judgment it had paid, filed
a complaint on August 10, 1998 pursuant to Tennessee Code
Annotated § 30-1-301 to admit Mr. Divinny’s estate to probate.
1
We have used this spelling of Ms. Winn’s name, although on the
appearance bond the spelling is “Dennise Winn.”
3
WBC had reason to believe that Mr. Divinny possessed real and
personal property.
On January 8, 1999 Peggy Mathes was appointed by the
Court as the personal representative for Mr. Divinny’s estate.
By mid-January 1999, Ms. Mathes had completed the
notice to creditors required by Tennessee Code Annotated § 30-2-
306(c). WBC filed its claim on January 29, 1999, and on
February 4, 1999 Ms. Mathes filed an exception to WBC’s claim
“for failure to file sufficient evidence of the basis of said
claim and all parts thereto.”
4
In May 1999 WBC filed an amended claim with
accompanying documents in support of its amended claim.2 On May
12, 1999 the Trial Court conducted a hearing on WBC’s claim
against Mr. Divinny’s estate and Ms. Mathes’s exception to the
claim. The Trial Court denied WBC’s claim, stating “that the
claim was filed more than one year following the death of Jackson
Brown Divinny and filing for administration in Chancery under
T.C.A.§30-1-301 is not an alternative proceeding for escaping the
one-year statute prohibiting creditors from filing claims more
than one year following the death of a debtor.”
On appeal WBC argues that its claim was timely filed
and thus, should receive payment for the forfeit judgment and
other expenses it has incurred. It contends that this case
2
Both claims by WBC were filed within the six-month period of time from
the date of the first publication of the notice to creditors pursuant to
Tennessee Code Annotated § 30-2-306(c). The period for filing a claim was
changed from six months to four months by a 1997 amendment of this statute.
The amendment became effective on January 1, 1998 and applies “to all estates
of decedents dying on or after January 1, 1998, and to all wills, other
documents and proceedings related thereto.” Compiler’s notes, Tenn. Code Ann.
§ 30-2-306 (Supp. 1997).
5
involves the application of Tennessee Code Annotated §§ 30-2-307
and 30-2-310.
WBC notes that both of these statutes begin with almost
the same language. Tennessee Code Annotated § 30-2-307(a)(1)
provides that “[a]ll 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(c).”
Tennessee Code Annotated § 30-2-310 provides the
following:
All claims and demands not filed with the
probate court clerk, as required by the
provisions of §§ 30-2-306 -- 30-2-309, or, if
later, in which suit shall not have been brought
or revived before the end of twelve (12) months
from the date of death of the decedent, shall
be forever barred.
6
Tennessee Code Annotated § 30-2-306(c) provides for a
notice to creditors of a decedent. In this case, creditors
received six months from the date of the first publication of the
notice to creditors in which to file their claims against the
estate.
WBC points out that both Tennessee Code Annotated §§
30-2-307 and 30-2-310 refer to the provisions of Tennessee Code
Annotated § 30-2-306. WBC maintains that it followed the
statutory provisions, which are plain and unambiguous, regarding
the filing of its claim against Mr. Divinny’s estate. WBC
asserts that because its claim was filed with the probate court
within the prescribed period of six months, “the remaining
provisions of Tenn. Code Ann. §30-2-307, especially those
provisions which would bar the claim, do not apply. Likewise,
Tenn. Code Ann. §30-2-310 does not bar Wheeler’s claim.”
Finally, WBC notes that the Trial Court found its claim barred
“because it had not been filed within one year following the date
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on which Mr. Divinny died as required by the two statutes.” WBC
argues that “it would have been a legal and physical
impossibility for Wheeler to file a claim within the one year
period because no estate had then been opened.”
In conclusion, WBC maintains that it filed its claim
against Mr. Divinny’s estate within six months of the published
notice under Tennessee Code Annotated § 30-2-306(c), and thus,
its claim is timely filed.
Ms. Mathes, as the personal representative for Mr.
Divinny’s estate, asserts that the Trial Court properly ruled
that WBC’s claim was not timely filed. Ms. Mathes maintains that
Tennessee Code Annotated § 30-2-307(a)(1)(B) provides that a
“creditor’s claim shall be barred unless filed within twelve (12)
months from the decedent’s date of death.”
8
Ms. Mathes notes that this Court recently analyzed
Tennessee Code Annotated §§ 30-2-306, 30-2-307, and 30-2-310 in
Roddy v. Hamilton County Nursing Home, an unreported opinion of
this Court, filed in Knoxville on March 24, 1999. This Court
noted that its holding in that case “does not address how, if at
all, the self-executing statute of limitations would apply in a
situation where an estate was first opened more than 12 months
after a decedent’s death.” Roddy, n.5.
Ms. Mathes further argues that “[i]t would be against
public policy to allow creditors to come forward at any time
after the expiration of twelve (12) months from the death of
[the] decedent demanding that an estate be opened and invoking
the Clerk’s duty to publish for creditors giving them another six
(6) [now four(4)] months to file claims against an estate.”
Therefore, Ms. Mathes maintains that because WBC did not seek to
collect a debt against Mr. Divinny’s estate until more than
twelve months after his death, it should not be permitted to use
9
Tennessee Code Annotated §§ 30-1-301 and 30-2-306 “as an
extension” of the statute of limitations of Tennessee Code
Annotated § 30-2-310.
Our review of the Trial Court’s decision, which was a
question of law, is de novo with no presumption of correctness.
Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995).
In addressing the issue before us, we note first
several rules of statutory construction helpful to our
determination this issue. In construing statutes, we are to
ascertain and give effect to the legislative intent of the
statute. Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995). We
look to the statute itself and are restricted to the natural and
ordinary meaning of the language used in the statute. Browder v.
Morris, 975 S.W.2d 308, 311 (Tenn. 1998). “Where words of the
statute are clear and plain and fully express the legislature’s
10
intent, there is no room to resort to auxiliary rules of
construction.” Browder, 975 S.W.2d at 311 (citation omitted).
From our reading of the relevant statutes, we are of
the opinion that WBC followed the statutory requirements for
filing its claim against Mr. Divinny’s estate. WBC sought to
have a personal representative appointed to administer Mr.
Divinny’s estate, since no one had come forward to do so. Once
that personal representative published a notice to creditors, WBC
filed its claim and then its amended claim within the prescribed
six-month period of time. As WBC notes in its brief, the
emphasis in both Tennessee Code Annotated §§ 30-2-307 and 30-2-
310 is on requiring creditors to file their claims against an
estate within a six-month period of time.
Ms. Mathes argues that allowing creditors to wait for
more than one year after a decedent’s death to come forward with
11
claims against an estate would violate public policy. While we
are mindful of Ms. Mathes’s public policy argument, we are also
aware that by construing the relevant statutes according to her
reasoning, relatives of a decedent could avoid payment to a
decedent’s creditors by not seeking probate until a year had
elapsed. We do not believe this is what our legislature
intended.
Based on the foregoing, we reverse the judgment of the
Davidson County Probate Court and remand this cause for further
proceedings consistent with this opinion. Costs of appeal as
well as below are adjudged against the Estate of Mr. Divinny.
12
_________________________
Houston M. Goddard, P.J.
CONCUR:
____________________________
Charles D. Susano, Jr., J.
____________________________
D. Michael Swiney, J.
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