In Re Estate of Henry C. Ellis, III

12/14/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
October 7, 2020 Session

IN RE ESTATE OF HENRY C. ELLIS III

Appeal from the Circuit Court for Shelby County
No. CT-004270-18 Gina C. Higgins, Judge
___________________________________

No. W2019-02121-COA-R3-CV
___________________________________

Appellant appeals the circuit court’s decision to allow a law firm to intervene in an estate
matter. Because we conclude that the circuit court lacked subject matter jurisdiction over
this estate matter, we vacate the decision of the circuit court and remand with instructions
to transfer this matter back to probate court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Vacated and
Remanded

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

Richard W. Parks, Memphis, Tennessee, for the appellant, Nancy Neely.

Edward T. Autry, Memphis, Tennessee, for the appellee, Williams McDaniel, PLLC.

OPINION

PROCEDURAL AND FACTUAL HISTORY

Although this case ostensibly involves only a single narrow issue, we must
unfortunately begin at the beginning. The record on appeal, however, is somewhat sparse.
We therefore take the procedural history of this case from various pleadings filed in the
trial court to the extent that they appear undisputed, as well as a prior opinion involving
this case. See In re Estate of Ellis, No. W2019-01431-COA-T10B-CV, 2019 WL 4566962
(Tenn. Ct. App. Sept. 20, 2019). In June 2015, a conservatorship proceeding was initiated
in the Shelby County Probate Court (“the probate court”) for Henry C. Ellis, III. Judge
Kathleen Gomes was assigned to preside. In September 2016, an independent conservator
was appointed.1 Judge Gomes continued to preside over the conservatorship matter without
dispute until May 30, 2018, when an attorney entered an appearance in the matter for Mr.
Ellis’s daughter, Petitioner/Appellant Nancy Neely (“Appellant”), the Trustee of the Henry
C. Ellis, III Revocable Living Trust. On the same day, Appellant filed a motion to recuse
due to a conflict between Appellant’s counsel and Judge Gomes. On June 6, 2018, Judge
Gomes initially denied the motion due to procedural noncompliance.

On July 6, 2018, Mr. Ellis passed away. Appellant thereafter filed a petition in
probate court to admit Mr. Ellis’s will to probate and to be appointed executor of his estate.
This case was again assigned to Judge Gomes.

On August 22, 2018, Judge Gomes, sua sponte, entered an order recusing herself
from the conservatorship matter and transferring the matter to Division IV of the Shelby
County Circuit Court (“the circuit court”), Judge Gina Higgins presiding. On September
17, 2018, Judge Gomes entered a similar order also recusing herself from the probate
proceedings, and transferring the “Estate File” to Division IV of circuit court “as a
companion file.” This order was sent to both Judge Higgins, and Judge Robert S. Weiss,
the Presiding Judge of the Thirtieth Judicial District (“the Presiding Judge”). After this
order of transfer, all subsequent filings in this case reflected a circuit court docket number
and were captioned as being filed in circuit court.

On October 3, 2018, Betty E. Fry and Vera E. Poag (“Interested Parties”), parties
interested in Mr. Ellis’s estate, filed a motion requesting that the probate matter be
transferred to chancery court, as circuit court lacked jurisdiction over estate matters. On
October 11, 2018, Mr. Ellis’s conservator filed a response.2 Therein, the conservator
conceded that while circuit court does not typically have jurisdiction in estate matters, the
circuit judge was nonetheless properly sitting by interchange under Rules 10B and 11 of
the Tennessee Supreme Court, discussed in detail infra. Moreover, the conservator alleged
that Judge Gomes had not violated Rule 10B in choosing her own successor because an
affidavit filed in the conservatorship action by the Presiding Judge confirmed that he had
made the decision to transfer both the conservatorship and the estate matter to Division IV
of circuit court. The conservator therefore argued that the circuit court had jurisdiction to
adjudicate the estate action. The cited affidavit, however, was not attached to the response.
Likewise, no order of interchange from the Presiding Judge was attached to the response,
and nothing therein indicated that the Presiding Judge actually entered an order to effect
the purported interchange. After this response was filed, it appears that neither the parties
nor the circuit court gave the issue of the circuit court’s subject matter jurisdiction further
consideration.

1
The identity of the conservators appointed has changed over the years. These changes are not
relevant to this appeal.
2
The response states that it was filed in the conservatorship action, but it bears the docket number
assigned to the estate matter.
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 Appellant thereafter filed an amended petition to admit the will to probate, which
included some additional factual allegations.3 On February 18, 2019, Appellant filed a
motion to recuse the circuit court judge in both the probate and conservatorship cases.
Appellant alleged, inter alia, that a conflict existed because Judge Higgins was a candidate
in the same election in which Appellant’s counsel had run against Judge Gomes. Appellant
asked that a trial judge outside of Shelby County be appointed. Appellant later filed an
amended motion to recuse on February 22, 2019.

Meanwhile, on February 18, 2019, Intervenor/Appellee Williams McDaniel, PLLC
(“Williams McDaniel”) provided notice of the filing of a consent order in a separate Shelby
County Chancery Court matter between Appellant and Williams McDaniel. The consent
order provided that a judgment was entered in favor of Williams McDaniel against
Appellant in the amount of $40,000.00. Additionally, the parties agreed that the judgment
“may be satisfied from funds to be received by [Appellant] from any distribution of her
share of her father’s Estate.” It was therefore further agreed that

4. At such time, and from time to time, any amount of money is
to be distributed to [Appellant] from the Estate, even if such monetary
distribution is less than $40,000.00, [Williams McDaniel] shall have the first
right to receive such monetary distribution directly from the Estate until this
Consent Order of Judgment has been fully satisfied, and [Appellant] shall
participate however necessary in order to cause the Estate to effectuate
distribution to [Appellant].
* * *
7. Upon receipt of an amount that satisfied this Consent Order of
Judgment, [Williams McDaniel] shall agree to the submission and entry of a
Satisfaction of Judgment.

Williams McDaniel thereafter filed a motion to intervene in the estate matter based on the
consent judgment on April 19, 2019. Therein, Williams McDaniel argued that the consent
judgment gave it priority interest in any estate assets ultimately distributed to Appellant
and that it was permitted to intervene under Rule 24.01 of the Tennessee Rules of Civil
Procedure. The motion to intervene was accompanied by a memorandum of law.

On May 20, 2019, the circuit court denied Appellant’s initial motion to recuse on
technical grounds. The circuit court’s order specifically reserved ruling on Appellant’s

3
Although this pleading was styled as an amended petition, it actually constituted an amendment
to the original petition. See Murray v. Hollin, No. M2011-02692-COA-R3-CV, 2012 WL 6160575, at *2
(Tenn. Ct. App. Dec. 10, 2012) (“By way of edification, an ‘amended’ complaint and an ‘amendment to’ a
complaint are two different things. An ‘amended complaint’ is complete in itself without adoption or
reference to original; as such, it supersedes and destroys the original complaint as a pleading. An
‘amendment’ to a complaint merely modifies the existing complaint, which remains before the trial court
as modified.”) (citations omitted).
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amended motion. Both Interested Parties and Williams McDaniel thereafter opposed the
amended motion to recuse. On July 19, 2019, the circuit court entered an order denying
Appellant’s amended motion to recuse. Appellant responded by filing a third motion to
recuse on August 2, 2019. The effort was again unsuccessful, as the circuit court entered
an order denying the motion on the same day. Appellant then filed an accelerated
interlocutory appeal of the circuit court’s denial of the third recusal motion. This Court
requested a response from Interested Parties on August 27, 2019. On September 20, 2019,
this Court entered an order affirming the circuit court’s denial of the second recusal motion.
See In re Estate of Ellis, 2019 WL 4566962, at *9.

On October 10, 2019, Interested Parties filed their own petition for probate of an
attested will and for the appointment of a personal representative. This filing indicates that
Interested Parties were submitting the same will for probate as had previously been
submitted by Appellant. On October 28, 2019, the circuit court entered an order granting
Williams McDaniel’s petition to intervene as an interested party. Pursuant to Rule 24.05
of the Tennessee Rules of Appellate Procedure, Appellant thereafter filed a timely notice
of appeal of the order to this court.4

DISCUSSION

The parties in this case confine their arguments to the sole question of whether the
circuit court erred in granting Williams McDaniel’s motion to intervene.5 Pursuant to Rule
13(b) of the Tennessee Rules of Appellate Procedure, however, we are also directed to
consider “whether the trial and appellate court have jurisdiction over the subject matter[,]”
even if not presented for review. Although this Court has subject matter jurisdiction to
consider an appeal from an order granting a motion to intervene, we must conclude that the

4
Rule 24.05 provides that “[a]ny order granting or denying a motion to intervene filed pursuant to
this rule shall be a final judgment for purposes of [Rule] 3 [of the Tennessee Rules of Appellate Procedure].”
5
Of course, Appellant raises this issue in a somewhat more verbose fashion. The exact issue she
raises on appeal is as follows:

Did the trial court err in granting [Williams McDaniel’s] motion to intervene as of right in
[Mr. Ellis’s] Last Will and Testament pursuant to Rule 24.01 of the Tennessee Rules of
Civil Procedure in light of the fact that: a) [Williams McDaniel] is not a judgment creditor
of nor does it have a cause of action against [Mr. Ellis] nor any heir of [Mr. Ellis] under
the terms of the Will and therefore has no substantial interest relating to the property or
transaction which is the subject of [Mr. Ellis’s] estate; b) the disposition of [Mr. Ellis’s]
estate will not as a practical matter impair or impede [Williams McDaniel’s] legal right or
ability to protect its interest via its otherwise legally enforceable consent judgment; c) there
was no prior stipulation of all the parties to the granting of [Williams McDaniel’s] motion
to intervene; and d) there was no proof offered by [Williams McDaniel] that the parties to
the underlying suit could not adequately represent [Williams McDaniel’s] interest.

-4-
circuit court lacked subject matter jurisdiction over this estate matter.

A challenge to a court’s subject matter jurisdiction calls into question “the court’s
‘lawful authority to adjudicate a controversy brought before it,’ and, therefore, should be
viewed as a threshold inquiry.” Redwing v. Catholic Bishop for Diocese of Memphis, 363
S.W.3d 436, 445 (Tenn. 2012) (internal citation omitted) (citing Northland Ins. Co. v.
State, 33 S.W.3d 727, 729 (Tenn. 2000); Schmidt v. Catholic Diocese of Biloxi, 2008-CA-
00416-SCT (¶ 13), 18 So.3d 814, 821 (Miss. 2009)). “Whenever subject matter jurisdiction
is challenged, the burden is on the plaintiff to demonstrate that the court has jurisdiction to
adjudicate the claim.” Id. (citing Staats v. McKinnon, 206 S.W.3d 532, 543 (Tenn. Ct.
App. 2006)). “The lack of subject matter jurisdiction is so fundamental that it requires
dismissal whenever it is raised and demonstrated.” Dishmon v. Shelby State Cmty. Coll.,
15 S.W.3d 477, 480 (Tenn. Ct. App. 1999) (citing Tenn. R. Civ. P. 12.08). “Subject matter
jurisdiction depends on the nature of the cause of action and the relief sought, and can only
be conferred on a court by the constitution or a legislative act.” Chapman v. DaVita, Inc.,
380 S.W.3d 710, 712 (Tenn. 2012) (internal citation omitted) (citing Landers v. Jones, 872
S.W.2d 674, 675 (Tenn. 1994); Kane v. Kane, 547 S.W.2d 559, 560 (Tenn. 1977)). The
question of whether a court possesses subject matter jurisdiction is an issue of law, which
we review de novo. Id. at 712–13.

This case is an estate action involving the probate of a will. Cf. In re Estate of Trigg,
368 S.W.3d 483, 501 (Tenn. 2012) (“The word ‘estate’ is a very comprehensive term in
the context of wills and probate proceedings.”). Pursuant to statute, unless otherwise
provided by statute, jurisdiction over estate issues lies in chancery court:

In all counties where not otherwise specifically provided by public, private,
special or local acts, all jurisdiction relating to the probate of wills and the
administration of estates of every nature, including the estates of decedents
and of wards under guardianships or conservatorships and related matters
previously vested in the county court, the county judge or county chair, is
vested in the chancery court of the respective counties. The chancery court
in such counties shall have exclusive jurisdiction over the probate of wills
and the administration of estates of every nature, including the estates of
decedents and of wards under guardianships or conservatorships, and all
matters relating thereto, previously vested in the county court.

Tenn. Code Ann. § 16-16-201(a). Shelby County is among the localities in which
jurisdiction over these matters has been vested in a probate court. See In re Jones’ Estate,
44 Tenn. App. 323, 333–34, 314 S.W.2d 39, 43 (Tenn. Ct. App. 1957) (“The Probate Court
of Shelby County was created by Chapter 86, Private Acts of the General Assembly of the
State of Tennessee of 1870. By Sec. 2 thereof, it is given original jurisdiction of all probate
matters . . . .”). The only jurisdiction that circuit court has over probate matters is when a
will contest is filed. See Tenn. Code Ann. § 32-4-109 (“Any court of record that has probate
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jurisdiction, whether a chancery court or other court of record established by private or
public act, has concurrent jurisdiction with the circuit court to conduct a trial upon the
validity of a will, in the manner and to the extent prescribed in this chapter.”); In re Estate
of Barnhill, 62 S.W.3d 139, 142–43 (Tenn. 2001) (“[W]hen a chancery court serves as the
probate court for a county, pursuant to Tenn. Code Ann. § 16-16-201(a), the chancery court
has discretion to certify the will contest for trial in the circuit court or it may simply assume
jurisdiction over the trial of the will contest . . . .”); Lawrence A. Pivnick, 1 Tennessee
Circuit Court Practice, § 3.5, at p. 214–15 (2019–20 ed.) (explaining that circuit courts
lack subject matter jurisdiction over “cases involving probate and the administration of
estates of decedents other than will contests”).

Nothing in the appellate record indicates that a will contest was filed in this case,6
much less certified to circuit court. As such, it does not appear that the circuit court has
subject matter jurisdiction in this matter. Rather, subject matter jurisdiction was vested
exclusively in probate court.

While the parties certainly do not address the circuit court’s subject matter
jurisdiction in their briefs to this Court, it does appear that one party did raise the issue of
subject matter jurisdiction in the circuit court. After the conservator argued that jurisdiction
was proper based on various statutes and court rules, however, the issue appears to have
been dropped. We will therefore consider whether these sources confer subject matter
jurisdiction on the circuit court.

Specifically, the conservator argued that the circuit court was properly sitting by
interchange after the recusal of Judge Gomes. We therefore begin with Rule 10B, the
Tennessee Supreme Court Rule governing recusal. Section 1.04 of that rule provides that

A judge who recuses himself or herself, whether on the judge’s own initiative
or on motion of a party, shall not participate in selecting his or her successor,
absent the agreement of all parties. With the agreement of all parties to the
case, the judge may seek an interchange in accordance with Tenn. Sup. Ct.
R. 11, § VII(c)(1). Otherwise, the presiding judge of the court shall effect an
interchange in accordance with Tenn. Sup. Ct. R. 11, § VII(c)(2) and/or (3)
in sequential order.

Tennessee Supreme Court Rule 11, section VII(c)(2) in turn provides that the recusing
judge “shall apply to the presiding judge or, if the applying judge is the presiding judge,
the presiding judge pro tempore of the judicial district to effect an interchange with a judge
of that judicial district in accordance with Tenn. Code Ann. § 16-2-509(c).”7 See also Tenn.

6
Although two petitions were filed to admit will to probate, both concerned the same April 16,
2013 will.
7
Subsection (3) involves interchange with a judge from outside the judicial district, and is therefore
-6-
Code Ann. § 16-2-509(c) (giving the presiding judge power to assign cases). Jurisdictional
issues that arise in the interchange scenario are governed by two statutes. First, Tennessee
Code Annotated section 16-2-502 provides as follows:

Each trial court judge shall continue to be officially known and designated
as either a chancellor, circuit court judge, criminal court judge, or law and
equity court judge, depending upon the position to which the chancellor or
judge was elected or appointed prior to June 1, 1984. Any judge or chancellor
may exercise by interchange, appointment, or designation the jurisdiction of
any trial court other than that to which the judge or chancellor was elected or
appointed.

Second, Tennessee Code Annotated section 17-2-206 provides that “[i]n all such cases, the
judge or chancellor holding court in the circuit or division of another, shall have the same
power and jurisdiction as the judge or chancellor in whose place the judge or chancellor is
acting.”

Having determined the proper framework for reviewing the jurisdictional issues in
this case, we have uncovered a multitude of issues. As an initial matter, it appears that the
order in which Judge Gomes recused and transferred the estate matter to circuit court was
signed only by Judge Gomes. Of course, Rule 10B specifically prohibits trial judges who
recuse from picking their successors. See Tenn. R. Sup. Ct. 10B, § 1.04. In the circuit court,
the conservator argued that Judge Gomes did not in fact pick her own successor, citing an
affidavit signed by the Presiding Judge that had been filed in the conservatorship matter.
Unfortunately, this affidavit was not filed in the case-at-bar, so we only have the
unsupported assertions of the conservator to establish these facts. And arguments are
simply not evidence. See Dayhoff v. Cathey, No. W2011-02498-COA-R3-JV, 2012 WL
5378090, at *2 (Tenn. Ct. App. Nov. 1, 2012) (citing Metro. Gov’t of Nashville &
Davidson Co. v. Shacklett, 554 S.W.2d 601, 605 (Tenn. 1977)). Moreover, even the
assertions of the conservator do not indicate that the Presiding Judge actually entered an
order effecting the interchange.

We note, however, that neither party has raised the issue of Judge Gomes’s
compliance with Rule 10B on appeal. It does not appear that this Court has ever previously
held that a trial court’s participation in picking his or her own successor implicates issues
of subject matter jurisdiction. But see Arrington v. Broyles, No. E2016-00363-COA-R3-
CV, 2017 WL 541536, at *4 (Tenn. Ct. App. Feb. 10, 2017) (holding that orders on
substantive matters that are entered after an order of recusal are “void and must be
vacated”). Indeed, this Court has previously held in other contexts that procedural errors
concerning orders of appointment are not fatal when the appointed judge acts in good faith.
See State ex rel. Williams v. Woods, 530 S.W.3d 129, 138 (Tenn. Ct. App. 2017) (citing

not at issue in this case. Tenn. Sup. Ct. R. 11, § VII(c)(3).
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Ferrell v. Cigna Prop. & Cas. Ins. Co., 33 S.W.3d 731, 739 (Tenn. 2000)) (“Although the
absence of an appointment order is a procedural error, the procedural error is not
necessarily fatal. If a judge is acting under the color of law absent bad faith, the special
judge may serve as a de facto judge, and his or her acts will be binding on the parties.”
(citations omitted)).8 Finally, although no proper evidence was presented of this fact,
neither party on appeal appears to dispute that the Presiding Judge was in fact involved in
the proceedings following the recusal of Judge Gomes. As such, we are hesitant to hold
that this violation of Rule 10B, standing alone, deprives the circuit court of subject matter
jurisdiction in such a way that we must correct the error even in the absence of an objection
by any party.

Judge Gomes’s possible violation of Rule 10B aside, a far more difficult issue to
side-step remains. We do not dispute that circuit court judges may sit by interchange in the
probate court notwithstanding that their court would not have subject matter jurisdiction to
decide probate matters. See generally Tenn. Code Ann. § 17-2-206. But that is simply not
what occurred in this case.

In this case, the effect of Judge Gomes’s order was not that a circuit court judge was
designated to sit by interchange in probate court; rather, this case was transferred to circuit
court. The appellate record simply allows no other conclusion. Following the transfer, the
docket number of the action was changed to reflect that the action was pending in circuit
court. Concomitantly, all of the pleadings and orders in this case began to be captioned as
filed in circuit court. None of the orders signed by the circuit court judge indicate that she
was sitting in probate court by interchange; rather, the judge signed as judge of circuit
court, Division IV. And the appellate record was compiled by the circuit court clerk, rather
than by the appropriate officials with the probate court. Finally, the opinion previously
issued following an accelerated interlocutory appeal to this Court specifically states that
both the estate and conservatorship matters “were transferred to” circuit court. In re Estate
of Ellis, 2019 WL 4566962, at *1. The opinion also reflects that the case was decided in
circuit court and gives no indication that the circuit court judge was merely sitting in
probate court by interchange. Id.

The transfer of a case to another court without subject matter jurisdiction is not
contemplated by our rules governing interchange. Section 17-2-206 expressly
contemplates that a judge who interchanges will “hold[] court in the circuit or division of
another,” thereby acquiring the powers of the judge “in whose place the judge or chancellor
is acting.” Another statute that specifically deals with the power of circuit court judges to
interchange with chancellors indicates that the proper procedure is for the circuit court to
act as chancellor, not for the case to be transferred to the circuit court:

8
Although there was a motion to recuse Judge Higgins, the denial of that motion was affirmed by
this Court. In re Estate of Ellis, 2019 WL 4566962, at *9. As such, nothing in the record indicates that
Judge Higgins has failed to act in good faith.
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 When any chancellor is incompetent to try any cause in the court for which
the chancellor is responsible, circuit judge may hear and determine the cause
as chancellor, for which purpose the clerk of the chancery court shall bring
before the chancellor all the papers in the cause, and the necessary entries
shall be made on the minutes of the chancery court, and signed by the circuit
judge presiding.

Tenn. Code Ann. § 17-2-112. Thus, while the circuit judge presides over the case, it
remains within the subject matter jurisdiction of the chancery court. Although this statute
may arguably be inapplicable to probate courts,9 statutes involving the same subject matter
should be read in pari materia, “that is, [a doctrine by which] statutes must be construed
together when they relate to the same subject matter and share a common purpose.” In re
Kaliyah S., 455 S.W.3d 533, 548 (Tenn. 2015); see also Graham v. Caples, 325 S.W.3d
578, 582 (Tenn. 2010) (“[T]he construction of one such statute, if doubtful, may be aided
by considering the words and legislative intent indicated by the language of another
statute.”). These statutes, when read together, clearly indicate that an interchange is
effected by a judge sitting in a court to which he or she was not elected or appointed, not
the transfer of a case from one court to another. In other words, our interchange framework
does not grant a court that otherwise lacks subject matter jurisdiction the power to
adjudicate the case; it simply authorizes judges from other courts to sit by interchange in a
court with subject matter jurisdiction when the original judge cannot preside over the
matter for whatever reason.

Caselaw supports our interpretation of these statutes. For example, in Jackson v.
Lanphere, No. M2010-01401-COA-R3-CV, 2011 WL 3566978, at *4 (Tenn. Ct. App.
Aug. 12, 2011), the appellant filed a petition for orders of protection in Sumner County
Chancery Court. The appellee filed a motion to dismiss or to transfer jurisdiction and
venue. The chancellor denied the motion, but ruled that because other related matters were
also pending before the Sumner County Juvenile Court (“the juvenile court”), the juvenile
judge would hear the order of protection matter by interchange. On appeal, the appellant
argued that the matter had been improperly transferred to juvenile court. We rejected this
argument, however, because the chancellor “did not transfer the order of protection to
another court but merely ordered that [the juvenile judge] would hear the case by
interchange.”10 Id. at *4.

9
Of course, probate courts are simply limited jurisdiction courts that are exercising the same power
that chancery courts wield in other counties. As such, we discern no distinction for purposes of this case.
10
We went further to hold, however, that a juvenile judge could not interchange with a chancellor,
but there being no objection, the juvenile judge had de facto power. Id. at *5. Tennessee law provides that
general sessions and juvenile court judges may only interchange with each other. See Tenn. Code Ann. §
17-2-208 (“Notwithstanding any other law to the contrary, judges of courts of general sessions and juvenile
courts may interchange with each other whenever causes exist making an interchange necessary or for
mutual convenience.”). There is no similar limitation on the interchange abilities of probate judges. Cf. In
re Estate of Nelson, No. W2006-00030-COA-R3-CV, 2007 WL 851265, at *1 (Tenn. Ct. App. Mar. 22,
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 In Fry v. Cermola, No. 03A01-9507-JV-00246, 1996 WL 30903 (Tenn. Ct. App.
Jan. 29, 1996), we also looked to the pleadings and orders filed in the case, all of which
noted that the case remained “in the Hamblen County Juvenile Court,” to hold that the case
had not been transferred to general sessions court, despite being presided over by the
general sessions judge by interchange. Id. at *1 (footnote omitted) (“It is clear that this case
was not transferred to the General Sessions Court, but rather was tried by the judge of that
court sitting by interchange in the Juvenile Court.”). In a similar case, we looked at the
orders drafted in the trial court to hold that a case that was transferred from criminal court
to probate court, which had jurisdiction over criminal actions, was adjudicated in probate
court even though a circuit judge without criminal jurisdiction presided over the action by
interchange. State v. Coolidge, 915 S.W.2d 820, 824 (Tenn. Crim. App. 1995), overruled
on other grounds by State v. Troutman, 979 S.W.2d 271 (Tenn. 1998) (“The trial here,
however, was not in the Fourth Circuit Court but, instead, in the Probate Court for
Davidson County, a court established by a separate act. Those drafted orders, as opposed
to those appearing on forms, bear the caption ‘In the Probate Court of Davidson County,’
Case No. SN-9958.”). Other cases confirm that while judges from other courts were sitting
by interchange, the cases were not transferred to the courts over which the interchanged
judges typically presided. See, e.g., In re Estate of Nelson, 2007 WL 851265, at *7 n.6
(“[W]e treat this judgment as one entered by the general sessions probate court because the
chancellor was sitting for the general sessions probate judge by interchange.”); Richards
v. Richards, No. 01-A-01-9005-CV00164, 1991 WL 66443 (indicating that the case came
out of probate court, though a circuit court judge decided it by interchange); Catignani v.
Catignani, No. 89-147-II, 1989 WL 126726, at *1 (Tenn. Ct. App. Oct. 25, 1989)
(indicating that the case came out of probate court, though a chancellor presided over the
case by interchange).

Again, the pleadings and filings in this case do not indicate that a simple interchange
occurred. Rather, these documents indicate that this matter was actually transferred to
circuit court. Circuit court does not, however, have jurisdiction over estate matters other
than will contests. See Tennessee Circuit Court Practice, § 3.5, at p. 214–15. Although we
are reluctant to invalidate an entire proceeding given the limited scope of this appeal, we
are constrained by the law to correct issues of subject matter jurisdiction “whenever it is .
. . demonstrated.” Dishmon, 15 S.W.3d at 480. Moreover, Judge Higgins appears to have
acted at all times in good faith and may again be designated to preside over this case by
interchange in probate court. It is therefore not unreasonable to imagine that identical
rulings will be made by her in the probate court. Still, the error in this case simply cannot
be ignored through the application of the harmless error doctrine. See Sawyers v. State,
814 S.W.2d 725, 727 (Tenn. 1991) (“A court cannot commit ‘harmless error’ in an action
over which it has no jurisdiction in the first place.”); 1 Tenn. Cir. Ct. Prac. § 3:2 (citing

2007) (involving a case decided by a chancellor sitting by interchange in Madison County Probate Court);
Richards v. Richards, No. 01-A-01-9005-CV00164, 1991 WL 66443 (Tenn. Ct. App. May 1, 1991)
(involving a case decided by a circuit judge sitting by interchange in Davidson County Probate Court).
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Sawyers, 814 S.W.2d at 727) (“A court’s exercise of subject matter jurisdiction which it
does not possess cannot be saved by the ‘harmless error’”). Simply put, the significant
errors in how this case was handled following the recusal of Judge Gomes have led to an
action being transferred to a court that lacked subject matter jurisdiction. And although this
issue was raised in the circuit court, it apparently was not fully pursued. All of the orders
entered by a court without subject matter jurisdiction are void. Dishmon, 15 S.W.3d at 480
(“Judgments or orders entered by courts without subject matter jurisdiction are void . . .
.”). We therefore must vacate the order appealed, as well as all of the other orders entered
in this case by the circuit court because it lacked subject matter jurisdiction.11

In the typical case, the lack of subject matter jurisdiction in the trial court requires
that we not only vacate the judgment of the trial court, but also dismiss the action.
Culbertson v. Culbertson, 455 S.W.3d 107, 126 (Tenn. Ct. App. 2014) (citing First Am.
Trust Co. v. Franklin-Murray Dev. Co., L.P., 59 S.W.3d 135, 141 (Tenn. Ct. App. 2001))
(“[W]hen the appellate court determines that the trial court lacked subject matter
jurisdiction, the appellate court must vacate the judgment below and dismiss the case
without reaching the merits of the appeal.”). Moreover, it is the general rule that a court
lacking subject matter jurisdiction over a case “has no authority to transfer it, unless that
authority is specifically conferred by statute, rule, or constitutional provision.” Norton v.
Everhart, 895 S.W.2d 317, 319 (Tenn. 1995). In 2000, however, the Tennessee General
Assembly enacted a general transfer statute, which provides as follows:

Notwithstanding any other provision of law or rule of court to the contrary,
when an original civil action, an appeal from the judgment of a court of
general sessions, or a petition for review of a final decision in a contested
case under the Uniform Administrative Procedures Act, compiled in title 4,
chapter 5, is filed in a state or county court of record or a general sessions
court and such court determines that it lacks jurisdiction, the court shall, if it
is in the interest of justice, transfer the action or appeal to any other such
court in which the action or appeal could have been brought at the time it was
originally filed. Upon such a transfer, the action or appeal shall proceed as if
it had been originally filed in the court to which it is transferred on the date
upon which it was actually filed in the court from which it was transferred.

Tenn. Code Ann. § 16-1-116. Although this case was not originally filed in circuit court, it
was initially filed in the proper court, and was removed through no apparent fault of any
party. Transfer back to probate court is therefore appropriate in this case. As such, we
vacate all orders entered by the circuit court in this matter and remand with directions for
this case to be transferred back to probate court. The Presiding Judge is then directed to

11
Because of the limited and interlocutory nature of this appeal, additional rulings could have been
made by the circuit court while this appeal was pending. These orders are likewise invalid. Id.
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enter an order designating another judge to sit by interchange in the probate court.12 Should
the probate court sitting by interchange again grant Williams McDaniel’s motion to
intervene, an immediate appeal of that order will be available under Rule 24.05.

CONCLUSION

The judgment of the Shelby County Circuit court is vacated, and this cause is
remanded to the trial court with instructions to transfer the matter back to Shelby County
Probate Court and for the entry of a proper order of interchange by the Presiding Judge of
the Thirtieth Judicial District. Costs of this appeal are taxed one-half to Appellant Nancy
Neely, and one-half to Appellee Williams McDaniel, PLLC, for all of which execution
may issue if necessary.

S/ J. Steven Stafford
J. STEVEN STAFFORD, JUDGE

12
Nothing in this Opinion should be construed as preventing the Presiding Judge from designating
Judge Higgins to sit by interchange in probate court for purposes of this case.
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