In re Estate of James Kemmler Rogers

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
September 21, 2016 Session

IN RE ESTATE OF JAMES KEMMLER ROGERS

Appeal from the Chancery Court for Giles County
No. P107014 Stella Hargrove, Judge
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No. M2015-01439-COA-R3-CV – Filed October 17, 2016
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Appellant, as a purported creditor of Decedent, appeals the trial court‟s denial of her petition
to open primary or ancillary probate of Decedent‟s estate in Tennessee. Appellees, the
Decedent‟s surviving children, argued, inter alia, that Appellant lacked standing to pursue
probate in Tennessee. The trial court did not address the standing issue before denying
probate. We conclude that, in the absence of a ruling on standing, the trial court‟s order is
not final and appealable under Tennessee Rule of Civil Procedure 3(a). As such, this Court
does not have subject-matter jurisdiction to hear the appeal. Appeal dismissed.

Tenn. R. App. P. 3 Appeal as of Right; Appeal Dismissed

KENNY ARMSTRONG, J., delivered the opinion of the court, in which J. STEVEN STAFFORD,
P.J., W.S., and ARNOLD B. GOLDIN, J., joined.

John A. Beam, III and Irene R. Haude, Nashville, Tennessee, for the appellant, Patricia
Porter Kryder a/k/a Patricia K. Gainer.

Andra J. Hedrick, Nashville, Tennessee, for the appellees, James Schneider Rogers and
Jennifer Rogers-Etcheverry.

OPINION

I. Background

James Kemmler Rogers (“Decedent”) died on June 11, 2014 in Bakersfield,
California. Decedent was survived by two adult children, James Schneider Rogers and
Jennifer Rogers-Etcheverry (together, “Appellees”). Decedent was employed in the cattle
business, and he moved quite frequently. In approximately 2007, Decedent began residing
on a small portion of Appellant Patricia Porter Kryder‟s farm in Tennessee. Ms. Kryder is an
attorney, who is licensed in Tennessee. In lieu of rent, Decedent and Ms. Kryder agreed that
Decedent would provide handyman-like duties.

On May 18, 2012, Decedent was injured in an automobile accident. It is alleged that,
prior to the accident, Decedent had discussed, with family and friends, the possibility of
moving back to California. Shortly after the accident, Decedent moved back to California to
be near his family. There is dispute between the parties as to whether Decedent ever
regained his mental faculties after the accident and whether his move to California was
voluntary. There is evidence that Decedent was active after he moved to California, i.e.,
swimming, eating out, and carrying on business. After moving to California, Decedent did
not maintain any cable or phone services in Tennessee, nor did he vote here. Decedent had
no property in Tennessee at the time of his death. Decedent‟s estate was admitted to probate
in Kern County, California on or about June 11, 2014. Ms. Rogers-Etcheverry was named
the administrator of the estate.

On November 7, 2014, Appellant filed a petition to probate Decedent‟s estate in the
Chancery Court for Giles County, wherein she alleged that she was a “creditor of the estate.”
On December 3, 2014, Appellant filed an amendment to the petition to include a copy of the
Decedent‟s will, which was executed in Texas. On December 15, 2014, Appellees filed a
“Notice of Filing,” with which they tendered certified copies of an order of probate and
letters of special administration that had been issued in connection with the probate of
Decedent‟s estate in Kern County, California. On December 18, 2014, Appellees filed a
response as interested persons to the petition to probate, contesting probate in Tennessee.

The trial court heard the petition to probate on December 30, 2014 and January 15,
2015. On February 6, 2015, Appellees filed a motion for discretionary costs. On February
10, 2015, Ms. Kryder filed a request for findings of fact and conclusions of law. On
February 10, 2015, the trial court entered a “Final Judgment and Order,” which denied
Appellant‟s petition to probate. Specifically, the trial court found that, “at the time of his
death . . ., James Kemmler Rogers . . . resided in and was domiciled in California.” The court
found that there was no basis for either primary or ancillary probate in Tennessee. On
February 13, 2015, the trial court entered an order granting Appellees‟ motion for
discretionary costs in the amount of $4,777.41.

On March 9, 2015, Appellant filed a renewed petition for ancillary probate. As a
ground for her petition, Ms. Kryder cited the 2012 “California Nonresident or Part-Year
Resident Income Tax Return,” which Decedent allegedly executed and filed. The document,
Ms. Kryder argued, evidenced Decedent‟s intent to remain domiciled in Tennessee, although
he was a resident of California.

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 After notice and time to cure, on June 8, 2015, Appellees filed a motion for Rule 11
sanctions against Ms. Kryder or her firm. Therein, Appellees alleged, inter alia, that Ms.
Kryder had failed to pay the discretionary costs as ordered by the trial court. In addition,
Appellees alleged that Ms. Kryder had engaged in “delay tactic[s]” by filing extraneous
motions and memoranda in support of ancillary probate after the trial court had orally ruled
that its order of February 10, 2015 was correct.

On June 12, 2015, Appellees filed a reply and supplemental memorandum in response
to Ms. Kryder‟s renewed motion for ancillary probate. In this response, Appellees
specifically raised the issue of whether Ms. Kryder had standing to pursue ancillary probate
of Decedent‟s estate in Tennessee, see discussion infra.

On July 1, 2015, Ms. Kryder filed a response to Appellees‟ request for Rule 11
sanctions and request for her attorney‟s fees and costs. In her response, Ms. Kryder argued
that her post-judgment filings were filed to bring

to the court‟s attention . . . that the [February 10, 2015] order failed to make
findings on required elements of proof (overt acts of the decedent in
furtherance of intent to abandon Tennessee and adopt California), failed to
establish who had the burden of proof at trial, made findings of intent by
negative inference that are clearly inconsistent with the written statements of
the decedent found in [the Nonresident California tax return), and made
findings inconsistent with the substantial weight of the evidence on the issue of
the decedent‟s recovery from the car wreck.

On July 7, 2015, Ms. Kryder filed a cross-petition for Rule 11 sanctions against Appellees.

The trial court heard Ms. Kryder‟s renewed petition for ancillary probate on June 12,
2015, see discussion infra. On July 14, 2015, the trial court entered an order denying Ms.
Kryder‟s petition. Therein, the trial court found that Ms. Kryder had failed to present new
evidence so as to necessitate rehearing; however, the trial court did not specifically rule on
the standing argument that was raised by Appellees in their response to Ms. Kryder‟s petition
for ancillary probate. On the same day, the trial court entered a separate order denying Ms.
Kryder‟s request for the court to make additional findings of fact and conclusions of law.
Ms. Kryder filed a notice of appeal on July 30, 2015.

On September 11, 2015, the trial court heard the cross-motions for Rule 11 sanctions.
By order of September 21, 2015, the trial court denied Ms. Kryder‟s Rule 11 motion, but
granted Appellees‟. The court found “that all pleadings filed [on Ms. Kryder‟s behalf] after
the hearing on February 13, 2015 . . . [were] improperly filed to harass, to cause unnecessary
delay, and to increase the cost of litigation.” In a “Final Judgment,” which was entered on
October 30, 2015, the trial court awarded Appellees‟ $5,311.85 in discretionary costs and
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$34,705.61 in damages under Rule 11. In its October 30, 2015 order, the trial court states:
“This is a final judgment that resolves all claims and issues in this case and is a final order
pursuant to Tenn. R. Civ. P. 54, from which an appeal may be taken.” Following entry of
this order, Ms. Kryder filed a supplemental notice of appeal on October 6, 2015. Thereafter,
on November 24, 2015, Appellees filed a motion to alter or amend the final judgment. In
their motion, Appellees asked the trial court to amend its judgment to reflect Ms. Kryder‟s
alias, Patricia K. Gainer. By order of December 8, 2015, this Court remanded the case to the
trial court (noting that this Court might not have attained jurisdiction under Tennessee Rule
of Appellate Procedure 3 in the absence of a ruling on Appellees‟ motion to alter or amend).
On remand, the trial court entered an order on February 12, 2016, granting Appellees‟ motion
and amending its judgment to also include Ms. Kryder‟s alias.

II. Issues

Ms. Kryder raises 9 issues in her brief; however, we perceive that there are two
dispositive issues, which we state as follows:

1. Whether the trial court erred in denying Appellant‟s petition to open primary
or ancillary probate of Decedent‟s estate in Tennessee.

2. Whether the trial court erred in awarding Rule 11 sanctions against Appellant
and in denying Appellant Rule 11 sanctions against Appellees.

III. Analysis

As briefly noted above, in their response to Ms. Kryder‟s renewed petition for
ancillary probate, which was filed on June 12, 2015, Appellees specifically raised the issue of
whether Ms. Kryder had standing to pursue probate in Tennessee:

[Ms. Kryder] is not an heir of the decedent. [Ms. Kryder] is not a beneficiary
under the decedent‟s will. Rather, [Ms. Kryder] is before the Court as a
purported creditor of the decedent. [Ms. Kryder‟s] standing to pursue probate
of the decedent‟s will in Tennessee is derived from her status as a purported
creditor. Without a viable creditor claim, [Ms. Kryder] has no standing to
pursue (or to continue to pursue) probate of the decedent‟s will in Tennessee.

At the June 12, 2015 hearing, Appellees again raised the question of standing. In relevant
part, Appellees‟ attorney argued that

[b]efore addressing the substantive matters . . . I want to talk about a
procedural matter that makes it moot that we‟re here in the first place. . . . By
statute, in order to even pursue a claim or any sort of proceedings as a creditor
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 in a Tennessee probate court, you must file your claim or your order of revivor
by the date which is one year from the date of death. That was yesterday. No
claim has been filed . . . And [Ms. Kryder] is here and throughout the lawsuit
has been . . . purported to be a creditor of the estate. And, Your Honor, I
would argue that once there is no possibility of any viable claim against the
estate in Tennessee, that there no longer is standing to pursue probate, whether
it‟s primary or ancillary. So I‟d ask the Judge to dismiss the motion for new
trial and for reconsideration on that ground alone.

After giving Appellant‟s attorney time to respond, the trial court stated: “Well, I‟m going to
reserve that issue and have you argue it further.” However, there is no indication that the
trial court subsequently ruled on the issue of standing, either from the bench or in its written
orders.

The question of standing is not simply an alternate ground for adjudication; standing
goes to the threshold inquiry of whether Ms. Kryder‟s petition for primary or ancillary
probate is justiciable. As explained by the Tennessee Supreme Court:

Courts use the doctrine of standing to determine whether a litigant is
entitled to pursue judicial relief as to a particular issue or cause of action.
ACLU of Tenn. v. Darnell, 195 S.W.3d 612, 619 (Tenn. 2006); Knierim v.
Leatherwood, 542 S.W.2d 806, 808 (Tenn.1976). The proper focus of a
determination of standing is a party‟s right to bring a cause of action, and the
likelihood of success on the merits does not factor into such an inquiry.
Darnell, 195 S.W.3d at 620; Petty v. Daimler/Chrysler Corp., 91 S.W.3d 765,
767-68 (Tenn.Ct.App.2002). Every standing inquiry requires a “careful judicial
examination of a complaint‟s allegations to ascertain whether the particular
plaintiff is entitled to an adjudication of the particular claims asserted.” Allen
v. Wright, 468 U.S. 737, 752, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).
Our jurisprudence recognizes two categories of standing that govern
who may bring a civil cause of action: non-constitutional standing and
constitutional standing. Non-constitutional standing focuses on considerations
of judicial restraint, such as whether a complaint raises generalized questions
more properly addressed by another branch of the government, and questions
of statutory interpretation, such as whether a statute designates who may bring
a cause of action or creates a limited zone of interests. See In re Estate of
Smallman, 398 S.W.3d 134, 148-49 (Tenn.2013); State v. Harrison, 270
S.W.3d 21, 28 (Tenn.2008); see also Ditto v. Del. Sav. Bank, No. E2006-
01439-COA-R3-CV, 2007 WL 471146, at *3 (Tenn. Ct. App. Feb. 14, 2007)
(discussing prudential considerations relevant to non-constitutional standing).
Constitutional standing, the issue in this case, is one of the “irreducible ...
minimum” requirements that a party must meet in order to present a justiciable
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 controversy. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct.
2130, 119 L.Ed.2d 351 (1992); see also City of Chattanooga v. Davis, 54
S.W.3d 248, 280 (Tenn.2001); Norma Faye Pyles Lynch Family Purpose
LLC, 301 S.W.3d at 202-[2]03 (noting that Tennessee courts‟ adoption of the
various justiciability doctrines, including standing, has a basis in the separation
of powers required under article II, sections 1 and 2 of the Tennessee
Constitution).
To establish constitutional standing, a plaintiff must satisfy “three
„indispensable‟ elements.” Darnell, 195 S.W.3d at 620 (quoting Petty, 91
S.W.3d at 767). First, a party must show an injury that is “distinct and
palpable”; injuries that are conjectural, hypothetical, or predicated upon an
interest that a litigant shares in common with the general citizenry are
insufficient in this regard. Id. Second, a party must demonstrate a causal
connection between the alleged injury and the challenged conduct. Id. (citing
Mayhew v. Wilder, 46 S.W.3d 760, 767 (Tenn.Ct.App.2001)). While the
causation element is not onerous, it does require a showing that the injury to a
plaintiff is “fairly traceable” to the conduct of the adverse party. Id. (quoting
DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 342, 126 S.Ct. 1854, 164
L.Ed.2d 589 (2006)). The third and final element is that the injury must be
capable of being redressed by a favorable decision of the court. Id.; see also
Davis, 54 S.W.3d at 280 (noting that the third standing element requires an
injury that “is apt to be redressed by a remedy that the court is prepared to
give” (quoting Metro. Air Research Testing Auth., Inc. v. Metro. Gov't of
Nashville & Davidson Cnty., 842 S.W.2d 611, 615 (Tenn.Ct.App.1992))).

City of Memphis v. Hargett, 414 S.W.3d 88, 97-98 (Tenn. 2013). Even though standing
does not depend on the merits, it often turns on the nature and source of the claim asserted.
Thus, the inquiry requires a “careful judicial examination of the complaint‟s allegations to
ascertain whether the particular plaintiff is entitled to an adjudication of the particular claims
asserted.” Id. at 97 (citation omitted); see also Curve Elementary Sch. Parent & Teacher's
Org. v. Lauderdale Cnty. Sch. Bd., 608 S.W.2d 855, 858 (Tenn.Ct.App.1980) (“[I]n ruling
on standing, it is both appropriate and necessary to look to the substantive issues to determine
whether there is a logical nexus between the status asserted and the claim sought to be
adjudicated.”) (quoting Flast v. Cohen, 392 U.S. 83, 88, S.Ct. 1942, 20 L.Ed.2d 947 (1968)).

Although the trial court did not adjudicate the standing issue, in its October 30, 2015
order, the trial court states: “This is a final judgment that resolves all claims and issues in this
case and is a final order pursuant to Tenn. R. Civ. P. 54, from which an appeal may be
taken.” Tennessee Rule of Civil Procedure 54.02 provides:

When more than one claim for relief is present in an action, whether as a
claim, counterclaim, cross-claim, or third party claim, or when multiple parties
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 are involved, the court, whether at law or in equity, may direct the entry of a
final judgment as to one or more but fewer than all of the claims or parties only
upon an express determination that there is no just reason for delay and upon
an express direction for the entry of judgment. In the absence of such
determination and direction, any order or other form of decision, however
designated, that adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the action as to any of
the claims or parties, and the order or other form of decision is subject to
revision at any time before the entry of the judgment adjudicating all the
claims and the rights and liabilities of all the parties

The question, then, is whether the trial court‟s reliance on Tennessee Rule of Civil
Procedure 54.02 language will excuse its failure to rule on the threshold issue of Ms.
Kryder‟s standing. Because this question goes directly to the issue of whether the trial
court‟s judgment is final, the standing issue also bears on whether this Court has subject-
matter jurisdiction to hear the appeal under Tennessee Rule of Appellate Procedure 3(a),
which provides:

(a) Availability of Appeal as of Right in Civil Actions. In civil actions
every final judgment entered by a trial court from which an appeal lies to
the Supreme Court or Court of Appeals is appealable as of right. Except as
otherwise permitted in Rule 9 and in Rule 54.02 Tennessee Rules of Civil
Procedure, if multiple parties or multiple claims for relief are involved in
an action, any order that adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties is not enforceable or appealable
and is subject to revision at any time before entry of a final judgment
adjudicating all the claims, rights, and liabilities of all parties.

Because subject-matter jurisdiction concerns the authority of the court to hear a matter and
cannot be waived, Meighan v. U.S. Sprint Communications Co., 924 S.W.2d 632, 639
(Tenn. 1996), this Court may consider the question of subject-matter jurisdiction sua sponte.
Tenn. R. App. P. 13(b); Ruff v. State, 978 S.W.2d 95, 98 (Tenn. 1998).

Generally, the trial court‟s decision regarding whether to certify a judgment as final
under Rule 54.02 is reviewed under an abuse of discretion standard. Newell v. Exit/In, Inc.,
No. M2003-00434-COA-R3-CV, 2004 WL 746747, at *1 (Tenn. Ct. App. Apr. 7, 2004).
Rule 54.02 creates two prerequisites to the certification of final judgment: (1) the order must
eliminate one or more but fewer than all of the claims or parties, Bayberry Assoc. v. Jones,
783 S.W.2d 553, 558 (Tenn. 1990), and (2) the order must expressly direct the entry of final
judgment upon an express finding of “no just reason for delay,” Fox v. Fox, 657 S.W.2d 747,
749 (Tenn.1983). If the trial court certifies a judgment that is not conclusive as to “one or
more but less than all of the claims in the action or the rights and liabilities of one or more
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parties, an appeal from it will be dismissed, even though the trial court decided to treat the
order as final.” 10 Charles Alan Wright et al., Federal Practice and Procedure § 2655 & n.8
(3d ed.1998) (collecting cases). In other words, a judgment pursuant to Rule 54.02 is a final
judgment with respect to a particular party or claim. Tenn. R. Civ. P. 54.02. A final judgment
is one that fully adjudicates the rights of the parties with respect to the claim pursued; a final
judgment leaves nothing further for the court to resolve. Tenn. R. App. P. 3(a); Shofner v.
Shofner, 181 S.W.3d 703, 712 (Tenn.Ct.App.2004). Thus, judgment on a claim certified as
final pursuant to Rule 54.02 must fully resolve the claim, leaving nothing further for the court
to resolve with respect to that claim. Id. Here, the question of Ms. Kryder‟s standing to bring
a petition for primary or ancillary probate must be resolved as a threshold inquiry. In the
absence of a determination as to standing, Ms. Kryder‟s petitions for probate and any
additional motions flowing therefrom are not fully resolved, and the trial court‟s inclusion of
Rule 54.02 language in its order will not cure this deficit.

An additional problem with the trial court‟s inclusion of Rule 54.02 language is that
the court fails to make a specific finding that “there is no just reason for delay” of entry of a
final judgment. Implicit in entry of a final judgment pursuant to Rule 54.02 is a finding by
the trial court that supports entry of the judgment. Huntington Nat'l Bank v. Hooker, 840
S.W.2d 916, 920 (Tenn.Ct.App.1991). Accordingly, this Court will dismiss an appeal if it
determines that a certified judgment either does not contain the requisite express findings,
Fagg v. Hutch Manufacturing Co., 755 S.W.2d 446, 447 (Tenn.1988), or improperly holds
that “no just reason for delay” exists. Huntington Nat’l Bank, 840 S.W.2d at 922. Here, not
only does the trial court‟s order fail to fully adjudicate the necessary question of standing, but
it also fails to make a specific finding that there is “no just reason for delay” of entry of a
final judgment.

Because Ms. Kryder‟s petition for primary or ancillary probate rests, in the first
instance, on the question of whether she has standing to bring such petition, the proper
adjudication of the issues raised on appeal (and in the trial court) is contingent on the trial
court‟s determination regarding standing. Notwithstanding the fact that the trial court‟s
rationale for entering the judgment as final pursuant to Rule 54.02 is not based on findings
that support a determination that there is “no just reason for delay,” the claims raised in the
trial court have not been fully adjudicated where the trial court has failed to address the
threshold issue of standing.
IV. Conclusion

We dismiss the appeal for lack of a final judgment. We remand the case to the trial
court for such further proceedings as may be necessary and are consistent with this opinion.
Costs of the appeal are assessed against the Appellant, Patricia Porter Kryder a/k/a Patricia
K. Gainer, and her surety, for all of which execution may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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