In Re Estate of Dorothy Jean McMillan ( 2021 )

04/01/2021
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
February 24, 2021 Session
IN RE ESTATE OF DOROTHY JEAN MCMILLIN
Appeal from the Chancery Court for Knox County
No. 189858-2 Clarence E. Pridemore, Jr., Chancellor
___________________________________
No. E2020-00413-COA-R3-CV
___________________________________
On behalf of the estate of his mother, one son, as substitute personal representative, filed
suit against his brother, the previous personal representative, seeking return of funds
alleged to be missing from the decedent’s accounts. Upon summary judgment, the trial
court found in favor of the defendant, the initial administrator of the estate. We reverse and
remand for trial.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Reversed; Case Remanded
JOHN W. MCCLARTY, J., delivered the opinion of the court, in which D. MICHAEL SWINEY,
C.J., and KRISTI M. DAVIS, J., joined.
Bruce T. Hill, Sevierville, Tennessee, for the appellant, Estate of Dorothy Jean McMillin.
Thomas M. Leveille, Knoxville, Tennessee, for the appellee, Paul L. McMillin.
OPINION
I. BACKGROUND
Dorothy Jean McMillin (“Decedent”), the mother of both plaintiff James McMillin
(“James”) and defendant Paul McMillin (“Paul”), lived at 3600 Guinn Road in Knoxville,
Tennessee, on property consisting of approximately six acres. By early 2012, Decedent
was experiencing various health problems.
On June 7, 2012, Paul drove Decedent to attorney Robert Wilkinson’s office, at
which time Decedent requested that new estate plans be prepared.1 After leaving Mr.
Wilkinson’s office, Paul drove Decedent to Regions Bank, at which time he accompanied
his mother into the bank and she changed her account from an individual account owned
solely by Decedent to a joint account owned by Decedent and Paul with a right of
survivorship. Three weeks later, Paul drove Decedent to Y-12 Credit Union, at which time
Decedent likewise changed her account from an individual account owned solely by
Decedent to a joint account owned by Decedent and Paul with a right of survivorship.2
On June 20, 2012, Decedent signed a new Last Will and Testament, appointing Paul
as the new personal representative of her estate. Pursuant to the language of Decedent’s
will, Paul was to distribute Decedent’s property equally among her beneficiaries, share and
share alike. On the same day, Decedent also signed a Durable Power of Attorney, naming
Paul as agent-in-fact. According to Paul, Decedent thereafter requested that he build a new
house for her on the existing property. Decedent passed away on November 18, 2012, prior
to the completion of the home.
Paul was issued Letters Testamentary to administer his mother’s Estate on
December 21, 2012. He continued to use the money from the joint bank accounts to
construct the house. Upon opening an Estate account with SunTrust, Paul issued checks to
each of the four sibling beneficiaries whereby each received $100,000. These checks were
issued in September 2013. The funds in the Estate account were originally held in
Decedent’s Vanguard account with a balance of approximately $577,897.03.
Two of Decedent’s four children, Iris Davenport and James,3 filed suit against Paul
and his wife Johneta McMillin, in their individual capacities, for exercising undue
influence over Decedent in an attempt to wrongfully enrich themselves. According to the
complaint, Paul obtained access to a sum total of $615,055.45 from Decedent (the assets
in the joint accounts). They requested that judgment be made on behalf of Decedent’s
Estate.
At the February 25, 2014 jury trial, Paul did not deny that he obtained the money
from his mother. He testified as follows:
Q: A grand total of $615,055.45; does that sound about like the total amount
that you received from those two accounts?
A: It could have been, yes, sir.
1
Her prior will named James to serve as personal representative.
2
According to Paul, Decedent believed that James and Iris wanted to put her in a nursing home and
use her money to pay for it.
3
Linda Cole is the fourth sibling.
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Paul further testified he spent this money, in addition to the amounts claimed in the present
matter, on the construction of Decedent’s home:
A: The monies, all of the monies that I have taken out of Regions and Y-12
has been spent on that house.
Q: And you’re telling the Court and the Jury that money that came out of
those accounts was used to build that house?
A: Absolutely.
An appraisal of the home at the time of that trial reflected a market value of $320,000. The
jury rendered a verdict against Paul and his wife in the amount of $284,800.4 It is apparent
that the jury subtracted the appraised value of the house from the $615,055.45 that Paul
obtained from his mother prior to her death, plus some apparent minor adjustments. This
court explained the verdict in this manner as demonstrated below:
Paul admitted that the house had been appraised at a value of approximately
$320,000. He provided no explanation for the disposition of the balance of
the $615,000, except to state that he withdrew cash for Decedent’s use in
paying her bills at her direction. The jury’s verdict of $284,800 reflects the
approximate difference between the $615,000 removed by Paul from the
Decedent’s accounts and the appraised value of the new home. Upon careful
review of the record, we conclude that there is material evidence to support
the jury’s verdict both in substance and amount, and the verdict must be
affirmed.
As administrator of the estate, Paul had the duty to collect the judgment against
himself on behalf of the Estate. Due to the obvious conflict of interest, on May 23, 2014,
Knox County Chancellor Michael Moyers removed Paul as the personal representative and
replaced him with the designated successor personal representative, James.
After assuming the duties as personal representative, James discovered that
$577,897.03 from Decedent’s Vanguard account had been deposited into the Estate’s
SunTrust account by Paul. From the account, Paul had issued $100,000 checks to each
beneficiary, leaving $177,897.03 as the balance in the account. However, when James took
over, the $177,897.03 was no longer in the account.
On behalf of the Estate, James filed suit against Paul to recover the $177,897.03.
The first lawsuit against Paul and his wife, in their individual capacities, did not address
4
Final Judgment entered March 4, 2014. Affirmed by this court on March 31, 2015, No. E2014-
00497-COA-R3-CV.
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Paul’s activities as personal representative. Paul answered the new complaint by citing a
provision under Decedent’s will and claiming that he had broad discretion on how to spend
the Estate’s assets.
Between March 2013, the date that the house was listed for sale with a licensed real
estate broker, and May 2015, the best offer from a qualified buyer was for $275,000 for
the new construction plus $5,000 for an additional one acre. This sum was $40,000 below
appraised valued, as the construction of the house was incomplete. Tammy Garber, the
licensed real estate agent who listed the property, stated in an affidavit that “at the time of
the sale” the property “was uninhabitable, requiring significant work to bring it up to code.”
An appraisal estimated the cost to complete the construction at $59,455; it further indicated
that “a large sinkhole on the property . . . negatively affected the marketability of the
property.”
James, in his capacity as successor personal representative, sought and received
court approval to sell the house ($275,000) and a one acre adjoining lot ($5,000) for the
sum of $280,000, because the Estate had insufficient funds to complete the construction of
the home. Relying upon this order, the property was sold on September 23, 2015, for
$280,000. The adjacent “old home,” with significant mold problems,5 was sold for
$153,000; there were no objections filed by any beneficiaries, including Paul.
After Paul acknowledged in a deposition that he spent the additional $177,897.03
on building the house, the Estate filed a motion for summary judgment. Paul’s defense in
the prior jury case had been the same--that he spent all of the funds in Decedent’s accounts
($615,055.45) to build the house. Now, including these additional funds, Paul claimed that
he spent $792,952.48 to build an uncompleted house that sold for $275,000. Taking the
facts in a light most favorable to Paul, the Estate argued that Paul had breached his fiduciary
duty and wasted the Estate’s assets. The Estate asserted that Paul should be estopped from
claiming the money that had been spent on the construction of the house, as the jury in the
prior case had already determined what credit he was entitled to receive for the house.
Additionally, the Estate argued that Paul breached his fiduciary duties by failing to provide
a full inventory and accounting of his expenditures during his tenure as the personal
representative, as ordered by the probate court. James contended that he was unable to
discover the misappropriation sooner due to Paul’s failure to abide by the probate court’s
ruling.
There was no trial in this case. Rather, the trial court made a final ruling based on
competing motions for summary judgment. The trial court ruled in Paul’s favor, finding
that he was not restrained in how he spent the Estate’s assets. The court ruled, in relevant
part, as follows:
5
According to Garber’s affidavit, the estimate to remediate the mold issue was “as much as
$30,000.”
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Prior to her death, [Decedent] requested that Defendant Paul McMillin build
a new house for her on the land adjacent to her then older house. Pursuant to
her request, Paul began building the house prior to her death.
After [Decedent] passed away on November 13, 2012, Defendant Paul
McMillin continued to build the new house located at 3602 Guinn Road ….
The Last Will and Testament of [Decedent] . . . granted the personal
representative the full authority and discretion to improve and “deal with”
real property along with “the continuing, absolute, discretionary power to
deal with any property, real or personal, held in any trust, as freely as I might
in the handling of my own affairs.”
“The Will” also granted the Personal Representative the power and authority
to “make repairs, replacements, and improvements, structural or otherwise,
to any such real estate.”
“The Will” further provides that “unless a fiduciary acts capriciously and
arbitrarily, my estate or a trust shall indemnify the fiduciary for all expenses
(including attorney fees) which he or she incurs or expends or which arises
from the exercise of his or her discretion.”
***
On April 1, 2014, Jessica Vinsant made a written offer to purchase the
“house” for . . . $495,000 ….
At that time, it was the opinion of Defendant Paul McMillin that the “house”
was worth at least . . . $495,000 ….
The “house” was subsequently sold by Plaintiff James McMillin when he
became successor Personal Representative, for the sum of . . . $280,000 ….
The “house” was sold “as is” when it could have been completed with the
expenditure of additional funds from the estate.
The realtor who listed the “house” recommended that the Personal
Representative complete the house.
Plaintiff James McMillin testified that he decided not to finish the house
before selling it, and that it was his decision not to do so.
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When Defendant Paul McMillin expended the . . . $177,000 . . . on the house
located at 3602 Guinn Road, he did it because he believed that the
expenditure of those funds on the “house” was in the best interests of the
Estate and in the best interest of the beneficiaries of “The Will.”
Defendant Paul McMillin expended the funds in the good faith belief that it
was appropriate to do so to get the best value out of the “house.”
The “house” was sold for . . . $280,000 . . . by Plaintiff James McMillin as
the Personal Representative of the Estate.
The “house” was subsequently sold by the purchaser on October 31, 2017,
for . . . $467,500 ….
***
Plaintiff James McMillin has not made any claim that there was defective
construction in relation to the “house.”
Defendant Paul McMillin has testified that the approximate . . . $177,000 . .
. in question was utilized solely in relation to the “house.”
Plaintiff James McMillin has testified that he does not have any knowledge
and is not aware of any evidence that would reflect that Defendant Paul
McMillin spent the . . . $177,000 . . . on anything other than the house at 3602
Guinn Road.
Therefore, this Court is of the opinion that Defendant’s Motion for Summary
Judgment shall be GRANTED ….
The Estate filed a motion seeking an interlocutory appeal of the rulings, arguing that
it was a waste of judicial resources to rule on Paul’s claim for attorney fees until the appeal
was resolved. The trial court denied that motion and opted to issue a final order reserving
the attorney fee request. This timely appeal ensued.
II. ISSUES
The issues raised on appeal are restated as follows:
1. Whether the order before this court is final and appealable (raised by this
court, sua sponte).
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2. Whether the trial court erred in granting summary judgment to Paul,
finding no genuine issues of material fact as to his actions in spending the
Estate’s funds without applying the prudent investor rule or making requisite
findings of fact and conclusions of law.
3. Whether the trial court erred in denying the Estate’s motion for summary
judgment in light of undisputed facts and undisputed testimony of Paul that
he spent $792,952.48 on the construction of a house that had an appraised
value of $320,000 (but sold for $275,000).
4. Whether the trial court’s denial of summary judgment was proper without
making requisite findings of fact and conclusions of law.
5. Whether Paul is entitled to an award of attorney fees on appeal pursuant
to the will.
III. STANDARD OF REVIEW
Rule 56.04 of the Tennessee Rules of Civil Procedure states that a motion for
summary judgment should only be granted 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.” The standard of review following a trial court’s decision on a motion
for summary judgment is de novo with no presumption of correctness. Tatham v.
Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 748 (Tenn. 2015) (citing Parker v.
Holiday Hospitality Franchising, Inc., 446 S.W.3d 341, 346 (Tenn. 2014)).
When reviewing the evidence, this court must determine whether any factual
disputes exist. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If a factual dispute exists,
it must determine whether the fact is material to the claim or defense upon which the
summary judgment is predicated and whether the disputed fact creates a genuine issue for
trial. See Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn.
2015); Byrd, 847 S.W.2d at 211.
The moving party who does not bear the burden of proof at trial “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, 477 S.W.3d at 264. If the moving party satisfies the burden of production,
the nonmoving party must respond by setting forth “specific facts showing that there is a
genuine issue for trial.” Tenn. R. Civ. P. 56.06. In evaluating the evidence in the summary
judgment context, we must view the evidence in the light most favorable to the nonmoving
party, and the court must draw all reasonable inferences in favor of that party. Cumulus
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Broad, Inc. v. Shim, 226 S.W.3d 202, 373-74 (Tenn. 2007); Abbott v. Blount Cnty., 207
S.W.3d 732, 735 (Tenn. 2006). Once the moving party demonstrates that there is no
genuine issue of material fact, the nonmoving party must then prove, via affidavits or
discovery materials, there is a genuine, material factual dispute to warrant a trial. Fowler
v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978); Merritt v. Wilson Cnty.
Bd. of Zoning Appeals, 656 S.W.2d 846, 859 (Tenn. Ct. App. 1983). In this regard, Rule
56.05 provides that the nonmoving party cannot simply rely upon its pleadings and must
set forth specific facts showing that there is a genuine issue of material fact for trial. “If he
does not so respond, summary judgment . . . shall be entered against him.” Id.; Byrd, 847
S.W.2d at 211.
Once the moving party makes a properly supported motion for summary judgment,
the burden shifts to the defendant to: (1) point to evidence establishing material factual
disputes; (ii) rehabilitate the evidence attacked by the moving party; (iii) produce additional
evidence establishing the existence of a genuine issue for trial; or (iv) submit an affidavit
explaining the necessity for further discovery. Tenn. R. Civ. P. 56.06. Accordingly, the
nonmoving party cannot simply claim that he/she might be able to come up with something
at trial to negate an element of the moving party’s claim at trial.
IV. DISCUSSION
a.
Upon our review of the procedural posture of this case, we find that this court has
jurisdiction to consider this appeal: “Tenn. R. Civ. P. 54.02 is an exception to Rule 3 that
permits the trial court, without permission from the appellate court, to certify an order as
final and appealable, even if parts of the overall litigation remain pending in the trial court.”
Johnson v. Nunis, 383 S.W.3d 122, 130 (Tenn. Ct. App. 2012). It states that a trial court
may certify as final an order that may direct the entry of a final judgment “as to one or
more but fewer than all of the claims or parties” that is, certify an order that resolves an
entire claim as to all parties or resolves all claims as to a particular party. Shofner v.
Shofner, 181 S.W.3d 703, 713 (Tenn. Ct. App. 2004). It allows “the trial court to convert
an interlocutory ruling into an appealable order.” Mann v. Alpha Tau Omega Fraternity,
380 S.W.3d 42, 49 (Tenn. 2012).
In this case, the Estate sought a money judgment against Paul. That claim was
completely disposed of by the trial court’s grant of summary judgment to Paul. The Estate
has no other pending issues before the trial court. The court properly certified in its order,
“[T]here is no just cause for delay, and the clerk of the court is directed to enter this final
judgment,” as required under Rule 54.02.
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b.
The construction of a will is a matter of law that we review de novo with no
presumption of correctness. In re Estate of Vincent, 98 S.W.3d 146, 148 (Tenn. 2003).
“The basic rule in construing a will is that the court shall seek to discover the intention of
the testator, and will give effect to it unless it contravenes some rule of law or public
policy.” Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990). Pursuant to the
language of Decedent’s will, the personal representative was to distribute the assets equally
among the four beneficiaries, share and share alike. Other relevant provisions of the will
provide as follows:
ITEM VI
AUTHORITY TO ADMINISTER REAL PROPERTY
My Personal Representative shall have full authority and discretion to
convey, improve, lease, encumber, or in any other manner deal with and
administer any real property comprising an asset of my estate, without the
approval of any court, the joinder of any beneficiary, or the disclosure of the
identity of any beneficiary of my estate. Furthermore, for purposes of
Tennessee Code Annotated, Section 31-2-103, all such real property shall be
deemed to be personal property following my death, subject to sale by the
Personal Representative acting without joinder of any beneficiary, for the
purpose of facilitating the distribution of my estate among the beneficiaries
of this Will, as well as for the purpose of paying taxes, administrative
expenses, and any other expenses or debts of my estate, without first being
required to exhaust all other personal property of my estate.
***
ITEM X
POWERS OF PERSONAL REPRESENTATIVE
I hereby grant to my Personal Representative (including any substitute or
successor Personal Representative) the continuing, absolute, discretionary
power to deal with any property, real or personal, held in any trust, as freely
as I might in the handling of my own affairs. Such power may be exercised
independently and without the prior or subsequent approval of any court or
judicial authority, and no person dealing with my Personal Representative
shall be required to inquire into the propriety of any of his or her actions….
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ITEM XI
INDEMNITY OF FIDUCIARY
Unless a Fiduciary acts capriciously and arbitrarily, my estate or a trust shall
indemnify the Fiduciary for all expenses (including attorney fees) which he
or she incurs or expends or which arises from the exercise of his or her
discretion.
The duties of an estate’s personal representative include “managing the decedent’s
estate.” In re Estate of Darken, No. M2016-00711-COA-R3-CV, 2016 WL 7378806, at *6
(Tenn. Ct. App. Dec. 10, 2016). A personal representative occupies “a fiduciary position
and, therefore, must deal with beneficiaries of the estate in utmost good faith.” Id. (citing
In re Estate of Ladd, 247 S.W.3d 628, 637 (Tenn. Ct. App. 2007). A fiduciary is obligated
to exercise loyalty and honesty in administering his or her duties. Roberts v. Iddins, 797
S.W.2d 615 (Tenn. Ct. App. 1990); Knox-Tenn Rental Co. v. Jenkins Ins., Inc., 755 S.W.2d
33 (Tenn. 1988).
The Estate contends that as a fiduciary of Decedent’s estate, Paul had an affirmative
duty to amass and preserve Decedent’s assets and exercise the “same degree of diligence
and caution that reasonably prudent business persons would employ in the management of
their own affairs.” See Estate of Locke v. Garthright, No. 1, 1991 WL 276801, at *4 (Tenn.
Ct. App. Dec. 31, 1991) (citing In re Estate of Inman, 588 S.W.2d 763, 767 (Tenn. Ct.
App. 1979); In re Estate of Cuneo, 475 S.W.2d 672, 676 (1971)); Coffee v. Ruffin, 44 Tenn.
487, 517 (Tenn. 1867) (cited in In Re Estate of Schorn, No. E2013-02245-COA-R3-CV,
2015 WL 1778292 (Tenn. Ct. App. Apr. 17, 2015). The obligations in handling an estate
are as follows:
In the custody, management and disposition of the estate committed to the
charge of a personal representative, that person is bound to demonstrate good
faith and to exercise that degree of diligence, prudence, and caution which a
reasonably prudent, diligent and conscientious business person would
employ in the management of their own affairs of a similar nature.
In re Estate of Inman, 588 S.W.2d at 767 (quoting Pritchard on Wills and Administration
of Estates, § 95 (3d ed. 1955), McFarlin v. McFarlin, 785 S.W.2d 367, 369-70 (Tenn. Ct.
App. 1989).
In order to recover for a breach of fiduciary duty, “a plaintiff must establish: (1) a
fiduciary relationship, (2) breach of the resulting fiduciary duty, and (3) injury to the
plaintiff or benefit to the defendant as a result of that breach.” Mitchell v. Morris, No.
E2015-01353-COA-R3-CV, 2016 WL 890212, at *9 (Tenn. Ct. App. Jan. 6, 2016) (citing
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Ann Taylor Realtors, Inc. v. Sporup, No. W2010-00188-COA-R3-CV, 2010 WL 4939967,
at 3 (Tenn. Ct. App. Dec. 3, 2010)).
Paul argues that this case should be viewed from his subjective “perspective” of
what was in the best interest of the Estate. He claims that he had “freely” exercised the
broad “full” and “absolute” authority that he had been granted under the will. He asserts
that the decision to continue to work on the house after Decedent’s death was made in good
faith and was not arbitrary and capricious. He contends that he believed the expenditure
of the funds on the house was in the best interest of the Estate and the beneficiaries to get
the best value out of the house.
Notwithstanding what the jury has already determined, Paul stated under oath in a
deposition in the present case that the $177,897.03 (in addition to the $615,055.45 in the
2014 case) was spent on building Decedent’s home:
Q: Where was the 177 thousand dollars deposited?
A: In the SunTrust.
...
Q: And you don’t know what these monies were used for other than to build
the house once you deposited it into the estate?
A: Yes, I know exactly what they were used for.
Q: And that is?
A: A hundred thousand dollars to four different beneficiaries.
Q: Right.
A: And the rest was used for writing checks on these to build the house.
In response to the Estate’s argument that the earlier jury “already ruled upon what Paul
McMillin is to be credited with spending on the construction of the house,” Paul argues
that the final judgment in the prior lawsuit was a general verdict of the jury that did not
make specific findings of fact. He contends that finding does not meet the elements of
either res judicata or collateral estoppel.
In the view of the Estate, Paul’s waste of the funds provided ample proof to the trial
court that Paul violated the relevant standard, especially when it is recalled that the jury
found that Paul and his wife converted hundreds of thousands of dollars from Decedent.
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According to the Estate, even if the trial court believes that Paul spent the assets in good
faith, the court failed to apply a “prudent manager” standard to determine whether the
expense of $792,952.48, to build a home that only sold for $275,000 was “prudent.” The
Estate further contends that the trial court abused its discretion in overruling the summary
judgment motion without providing any findings of fact or conclusions of law.
Our review reveals disputed issues of material facts that need to be addressed.
Despite Paul’s claims about higher offers to purchase the property, the Estate maintains
that the real properties at 3600 and 3602 Guinn could not have been repaired, improved, or
completed for sale with only relatively modest expenditures of additional funds.6 The
record before us indicates insufficient funds remained in the Estate account to fix the
problems. Immediately preceding the approval of the sale by the Chancery Court, the
Estate’s checking account reflected a balance of $2,305.66, which would have done little
toward resolving the remaining issues.7 The Estate notes that Paul was overruled in his
opposition to the sale of the property at 3602 Guinn Road by Chancellor Moyers. Further,
the Estate recalls that Paul explicitly agreed to the sale of 3600 Guinn Road for $153,000
with no objection. However, the trial court did not appear to consider these prior rulings.
Additionally, it made no mention of the following specific finding from a Master’s Report
of April 9, 2015:
While there may be a difference of opinions about the construction
deficiencies and existence of a sinkhole, the Clerk and Master reports that
there is no dispute that the liquid assets in this estate are less than $3,000,
that Paul is not going to pay the judgment (in favor of the Estate against Paul
of $284,800), that the real estate taxes are delinquent, that the dwelling is
incomplete and that insurance premiums in excess of $3,000 are coming due
and payable.
Paul also urged the trial court to ignore the appraisal, jury verdict, and ultimate sale
price of the 3602 Guinn Road property and look at a future sale price. The individual who
bought the property from the Estate pursuant to the court order of May 12, 2015,
purportedly sold the property 2.5 years later (October 31, 2017) for $467,500. However, it
is unknown the expenses the buyer incurred to make the necessary repairs and to complete
the construction in order to sell it for that amount. Thus, as argued by the Estate, reliance
upon this speculative information by the trial court was improper.
Further, the court’s ruling does not appear to have considered the undisputed fact of
6
The new house, known as 3602 Guinn Road, and the original house, at 3600 Guinn Road, are both
located on a tract of land containing approximately six acres. The tract was not subdivided to meet Knox
County code requirements for the sale of a new dwelling.
7
Paul claims that the $400,000 distributed to the beneficiaries was still “available” and could have been
used to complete the unfinished house.
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the total amount of money Paul claims he spent on building the incomplete house. The trial
court seems to have neglected consideration of the Estate’s brief and exhibits. A review of
the trial court’s memorandum reflects no analysis of the Estate’s position.
Accordingly, we do not find that the record supports the trial court’s entry of
summary judgment. We must reverse and remand for trial.
c.
Paul has moved for an award of attorney fees in the amount of $28,636.24 and
expenses of $44.50. He also requests attorney fees on appeal. He contends that an award
of expenses including attorney fees is warranted pursuant to Decedent’s will. In that we
are reversing and remanding this matter for a trial, however, no attorney fee request is ripe
at this time.
V. CONCLUSION
For the reasons stated, we reverse the decision of the trial court and remand for
further proceedings consistent with this opinion. Costs on appeal are assessed to the
appellee, Paul McMillin.
_________________________________
JOHN W. MCCLARTY, JUDGE
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