12/05/2017
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
October 3, 2017 Session
IN RE ESTATE OF EUNICE KATHERINE SANDERS McCOLLUM
Appeal from the Juvenile Court for Dickson County
No. 0308026P Michael R. Meise, Judge
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No. M2015-02169-COA-R3-CV
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This is a probate case, and the parties are Decedent’s children. Appellant son filed a
claim against Appellee daughter, alleging that she mishandled the Decedent’s financial
affairs, both during Decedent’s life and after her death in 2007. In 2009, the trial court
appointed a special master, who conducted two evidentiary hearings and filed two
reports, which essentially exonerated Appellee from any wrong-doing. Two years later,
the trial court ordered the Administrator of the estate to pay certain fees and file certain
applications so that the estate could be closed, and dismissed all pending motions filed by
the parties. Appellant filed a motion to alter or amend the judgment of the trial court that
was denied. Concluding that the Appellant did not have standing to bring a claim against
Appellee, we affirm and remand.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court
Affirmed and Remanded.
KENNY ARMSTRONG, J., delivered the opinion of the court, in which RICHARD H.
DINKINS and W. NEAL MCBRAYER, JJ., joined.
Charles Watson Cross, Nashville, Tennessee, for the appellant, Gary McCollum.
Thomas N. Bateman and Robert T. Bateman, Clarksville, Tennessee, for the appellees,
Linda Rye, and Estate of Eunice Katherine Sanders McCollum.
OPINION
I. Background
Eunice McCollum (“Decedent”) died January 16, 2007 at the age of 83. She is
survived by her daughter, Linda Rye (“Appellee”), and her two sons Gary McCollum
(“Appellant”) and Mark McCollum.1
In March 2008, Appellee and Appellant filed competing petitions to be appointed
administrator of Decedent’s estate. In support of his petition to be appointed
administrator, Appellant alleges that Appellee acted inappropriately in handling
Decedent’s financial affairs, both during Decedent’s life and after her death. Appellant’s
petition requests that Appellee be required to produce certain records and submit to
questioning under oath. This is the only relief sought against Appellee.
After several delays, in June 2009, the trial court appointed a special master to
conduct a thorough review of Decedent’s assets, receipts, income, and expenditures.
Appellee was ordered to cooperate fully with the investigation. On June 15, 2010,
Appellee was specifically ordered to file an accounting of all transactions from 2004
through June 2010. Appellee filed her accounting on August 19, 2010. The special
master conducted two evidentiary hearings and filed two reports, which essentially
exonerated Appellee from any wrong-doing.
The first trial judge recused himself from the case on December 1, 2010 and was
replaced by Judge Anthony Sanders. In August 2012, Judge Sanders appointed Kyle
Sanders (no relation) as administrator of Decedent’s estate. In October 2012, the
Administrator filed a motion requesting a forensic accountant to help complete the task.
In January 2013, Appellant filed a “motion” agreeing to Administrator’s request for a
forensic accountant so long as the accountant did not come from Dickson County and the
fees were charged to Appellee. In his motion, Appellant also requested to be appointed
as co-administrator. In March 2013, Appellee filed a motion to dismiss pursuant to
Tennessee Rule of Civil Procedure 12.02. In her motion, Appellee argues that all of
Appellant’s filings should be stricken due to Appellant’s lack of standing to pursue
claims against Appellee. Although Appellant filed a lengthy response to the motion to
dismiss, he did not address the issue of standing.
On October 2, 2014, the trial court conducted a hearing, in which the
Administrator testified that any bank accounts relevant to the case were jointly owned by
Appellee and Decedent with right of survivorship. Additionally, the Administrator
determined that, to help her parents, Appellee deposited more of her own funds in the
accounts than she withdrew. The trial court entered a judgment on October 27, 2014,
finding that the estate was solvent and that the only remaining property subject to
administration of the estate was approximately $33,000, which consisted of rents
collected after Decedent’s death. The trial court ordered that certain payments be made
to the special master and the Administrator and that the remaining balance be divided
equally among the Decedent’s three children. The trial court specifically found that the
1
Other than being an heir-at-law, Mark McCollum is not involved in this litigation.
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administration of the estate “was being hampered by the actions pursued by [Appellant]”
and noted the Administrator’s desire to close the estate. The trial court also denied
Appellant’s request for the appointment of a forensic accountant and dismissed all
pending motions.
On November 26, 2014, Appellant filed a Motion to Alter or Amend Judgment. In
his motion, Appellant argued that Appellee’s name was added to Decedent’s bank
accounts to facilitate the handling of transactions and that there was no basis for finding a
right of survivorship in any of the bank accounts. Appellant also argued that Appellee’s
claim for $45,502.37, allegedly spent by Appellee on Decedent’s behalf, had already
been barred by a previous order. Therefore, Appellant argued that Appellee was not
entitled to receive credit for these expenditures. On February 15, 2015, Judge Sanders
entered an order recusing himself from the case. On September 30, 2015, Judge Michael
Meise entered an order denying Appellant’s Motion to Alter or Amend. Appellant
appeals.
II. Issues
Appellant raises two issues for review as stated in his brief:
1. The trial court erred in holding [that there] was a “right of
survivorship” in bank accounts as a basis for its dismissing the case.
2. The trial court erred in justifying ruling no accounting was required
because of gift claim by [Appellee].
III. Analysis
As an initial matter, Appellee argues that Appellant has no standing in this case.
The standing of an individual filing a law suit is a threshold issue that must be
adjudicated prior to any consideration of the merits of the case. Courts employ the
doctrine of standing to determine whether a particular litigant is entitled to have a court
decide the merits of a dispute or of particular issues. Am. Civil Liberties Union of
Tennessee v. Darnell, 195 S.W.3d 612, 619-20 (Tenn. 2006); Warth v. Seldin, 422 U.S.
490, 498, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975); Knierim v. Leatherwood, 542 S.W.2d
806, 808 (Tenn. 1976) (holding that courts use the standing doctrine to decide whether a
particular plaintiff is “properly situated to prosecute the action.”); City of Brentwood v.
Metropolitan Bd. of Zoning Appeals, et al., 149 S.W.3d 49, 55 (Tenn. Ct. App. 2004),
perm. app. denied (Tenn. Sept. 13, 2004).
Appellant argues that he has standing based on the private act creating the Probate
Court of Dickson County, which incorporates the Uniform Durable Power of Attorney
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Act (UDPAA) as a part of its jurisdiction. While it is true that section 116(a)(4) of the
Uniform Power of Attorney Act (UPOAA) specifically grants descendants the power to
petition the court to review an agent’s conduct, Tennessee has never adopted that section
of the UPOAA. Tennessee explicitly grants standing to demand an accounting to: the
principal, a court, or a legal representative appointed by the principal. Tenn. Code Ann. §
34-6-107.
There is simply no statute supporting Appellant’s claim of standing. The case law
also makes it clear that Appellant has no standing to pursue his claim. In In re Estate of
Hendrickson, No. M2008-01332-COA-R9-CV, 2009 WL 499495, (Tenn. Ct. App. Feb.
25, 2009), this Court addressed the issue of who may assert claims on behalf of the estate,
to wit:
The law in Tennessee is clear that upon the appointment of a personal
representative, the title to all of the decedent's general personal estate is
vested in the representative. First Nat'l Bank v. Howard, 302 S.W.2d 516,
518 (Tenn. Ct. App. 1957); see Union Planters Nat'l Bank & Trust Co. v.
Beeler, 112 S.W.2d 11 (Tenn. 1938). Neither legatees nor distributees
acquire any property in the goods of the decedent until the assent of the
executor or the administrator is given; they have only an inchoate right to
the surplus after payment of the debts. Howard, 302 S.W.2d at 518-19.
This includes personal property or assets, as well as debts and balances due
to the decedent. Id. at 518. The title taken by the personal representative is
exclusive; and therefore, creditors, legatees, and other interested parties can
assert their claims only through the personal representative, who is the legal
custodian and owner of the goods. Id. at 518-19.
Because the absolute title is vested with the personal representative, only
the Administrator has the right to maintain a civil action to recover the
debts or other assets due the estate. 2 Pritchard § 709 (citing Bishop v.
Young, 780 S.W.2d 746, 750 (Tenn. Ct. App. 1989)). This includes actions
to recover assets taken from the decedent by fraud or deceit. See Willis v.
Smith, 683 S.W.2d 682 (Tenn. Ct. App. 1984); see also Owens v. Breeden,
661 S.W.2d 887 (Tenn. Ct. App. 1983). The law concerning tort actions,
such as conversion prior to the death of the decedent, are also exclusive to
the personal representative, since this is an exception carved in the law,
which used to preclude such actions from being pursued after the death of
the person harmed. 2 Pritchard § 716.
Estate of Hendrickson, 2009 WL 499495, at *7. The personal representative of a
decedent’s estate has “the duty to represent the interests of the estate and, to the extent of
their expectancy interest, the interests of the beneficiaries of the estate.” Id. at *5. To
that end, a third party may bring an action on behalf of a decedent’s estate where it is
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established that the personal representative is in collusion with the debtor or the personal
representative is refusing to take the necessary steps to recover a debt that is about to be
lost. Efferson v. Stephens, No. M2014-00326-COA-R3CV, 2015 WL 544849, at *4
(Tenn. Ct. App. Feb. 9, 2015) (internal citations omitted).
Here, Appellant never filed any action against the Administrator. Although
Appellant argues that there was no administrator when he filed his initial petition, the
Administrator was appointed in August 2012, two years prior to the entry of the judgment
by the trial court. During that time, Appellant never alleged that the Administrator
refused to collect on a debt owed to the estate. Appellant never alleged that the
Administrator was colluding with Appellee. Appellant also never filed a claim against
the Administrator alleging any wrong-doing whatsoever. Following the entry of the
judgment by the trial court in October 2014, Appellant filed his Motion to Alter or
Amend Judgment, but did not allege therein any wrong-doing on the part of the
Administrator. In the absence of any alleged wrongdoing on the part of the
Administrator, we conclude that Appellant has not established a basis on which he is
entitled to pursue claims on behalf of the estate. Accordingly, Appellant does not have
standing to bring a claim against Appellee, and we affirm the trial court’s order
dismissing all pending motions and ordering closure of the estate.
V. Conclusion
For the foregoing reasons, we affirm the order of the trial court. We remand the
case for such further proceedings as may be necessary and are consistent with this
opinion. Costs of the appeal are assessed against Appellant, Gary McCollum, and his
surety, for all of which execution may issue if necessary.
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KENNY ARMSTRONG, JUDGE
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