In Re Estate of Anna Sue Dunlap, Richard Gossum, Administrator CTA

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
Assigned on Briefs January 31, 2011
IN RE ESTATE OF ANNA SUE DUNLAP, DECEASED,
RICHARD GOSSUM, ADMINISTRATOR CTA
An Interlocutory Appeal from the Chancery Court for Gibson County (Trenton)
No. 16727-P George R. Ellis, Chancellor
No. W2010-01516-COA-R9-CV - Filed April 29, 2011
This appeal addresses an award of attorney fees to the attorney for a decedent’s estate for
services rendered on appeal. The appellant administrator of the estate is also the estate’s
attorney. The administrator/attorney’s final accounting was approved by the trial court, and
two of the estate’s beneficiaries appealed. The appellate court affirmed the trial court’s
approval of the final accounting. On remand, the administrator/attorney filed a motion for
the approval of all attorney fees incurred in the administration of the estate, including
attorney fees for services rendered in the first appeal. The trial court declined to approve the
attorney fees incurred on appeal, holding that such fees may be awarded in the first instance
only by the appellate court. The administrator/attorney now appeals. We reverse, concluding
that attorney fees for the administrator/attorney’s services rendered on appeal constitute an
administrative expense of the estate, and so the request for such fees must be made in the first
instance in the trial court.
Tenn. R. App. P. 9 Appeal by Permission; Judgment of the
Chancery Court is Reversed and Remanded
H OLLY M. K IRBY , J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and J. S TEVEN S TAFFORD, J., joined.
Richard Gossum, Trenton, Tennessee, representing himself in his capacity as the Appellant,
Richard Gossum, Administrator of the Estate of Anna Sue Dunlap
James S. Haywood, Jr., Brownsville, Tennessee, for the Appellees, Warner Dunlap, Jr., and
Dr. Mary Dunlap Wells
OPINION
1
F ACTS AND P ROCEEDINGS B ELOW
After her death, an estate was opened for the decedent, Anna Sue Dunlap (“Mrs. Dunlap”).
Initially, the trial court appointed her two sons as co-administrators.2 See In re Estate of
Anna Sue Dunlap, No. W2009-00794-COA-R3-CV, 2010 WL 681352, at *1 (Tenn. Ct.
App. Feb. 26, 2010). Unfortunately, the two brothers were unable to peaceably complete
their duties. Consequently, in September 2007, about four years after the estate was opened,
the two brothers were removed as co-administrators of Mrs. Dunlap’s estate. The trial court
then appointed Appellant Richard Gossum (“Mr. Gossum”), an attorney, as the independent
successor administrator of the estate. In that position, Mr. Gossum prepared a transitional
accounting for the estate with the information that the former co-administrators supplied to
him in order to settle the accounts of the co-administrators and to provide a starting point for
his final accounting for the estate. Id.
In October 2008, Mr. Gossum served his final accounting on two beneficiaries of the estate,
Warner Dunlap, Jr., and Dr. Mary Dunlap Wells (collectively “Appellees”).3 The Appellees
objected to the final accounting and moved for a continuance to obtain additional evidence.
The trial court denied the motion for a continuance and approved Mr. Gossum’s final
accounting. Id. It then denied the Appellees’ motion to amend and ordered the estate closed.
The Appellees appealed to this Court. On February 16, 2010, this Court entered an order
affirming the trial court’s decision in all respects and assessing costs to Warner Dunlap, Jr.,
and Dr. Mary Dunlap Wells as the appellants in the first appeal. Id. at *5. The case was
remanded to the trial court.
On March 18, 2010, on remand, Mr. Gossum filed a motion in the trial court for the approval
of his attorney fees for all services rendered to the estate, including the services provided in
the first appeal, a total amount of $12,373.72. On April 16, 2010, the trial court conducted
a hearing on Mr. Gossum’s motion. On May 17, 2010, the trial court entered an order
approving all of the attorney fees requested by Mr. Gossum except for the fees attributable
1
Our recitation of the facts are taken in part from our Opinion in the first appeal in this case. See In re Estate
of Anna Sue Dunlap, No. W2009-00794-COA-R3-CV, 2010 WL 681352 (Tenn. Ct. App. Feb. 26, 2010).
2
Mrs. Dunlap apparently left a last will and testament, but the appellate record reveals no details related to
this.
3
The Appellees became beneficiaries of Mrs. Dunlap’s will after her son, Walter Dunlap, Sr., disclaimed his
interest in Mrs. Dunlap’s estate. It is unclear from the record on appeal whether there were other
beneficiaries in addition to Appellees Walter Dunlap, Jr., and Dr. Mary Dunlap Wells.
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to his services rendered in the first appeal. As to the services in the first appeal, the trial
court declined to approve them on the basis that “only the Court of Appeals can set fees for
services rendered in that Court.” Mr. Gossum was thereafter granted permission under Rule
9 of the Tennessee Rules of Appellate Procedure for this interlocutory appeal.
I SSUE ON A PPEAL AND S TANDARD OF R EVIEW
On appeal, Mr. Gossum argues that the trial court erred in concluding that only the appellate
court can award fees for his services rendered in the first appeal. This issue is a question of
law, which we review de novo, with no presumption of correctness in the trial court’s
decision. See State v. Levandowski, 955 S.W.2d 603, 604 (Tenn. 1997); Union Carbide
Corp. v. Huddleston, 854 S.W.2d 87, 91 (Tenn. 1993).
A NALYSIS
Mr. Gossum argues that the trial court had authority to approve his request for attorney fees
for the first appeal. In support, he cites Chaille v. Warren, 689 S.W.2d 173 (Tenn. Ct. App.
1985). The Chaille case involved a will contest by several heirs of the decedent’s estate that
lasted some four years.4 At some point during the controversy, the trial court ordered the sale
of real property that was the subject of the decedent’s will.5 After the sale, the trial court
awarded attorney fees to both the plaintiffs’ counsel and defendants’ counsel. The attorney
fees were to be paid from the proceeds of the sale of the real property pursuant to Tennessee
Code Annotated § 29-27-121, which permits the trial court to “order the fees of the attorneys
for the complainant and defendant to be paid out of the common fund, where the property
is sold for partition . . . .”6 Chaille, 689 S.W.3d at 176-77. Some of the beneficiaries
appealed. On appeal, the appellate court reversed the trial court’s interpretation of the will
and remanded for further proceedings. The defendant appellants requested attorney fees on
appeal. The appellate court declined to make such an award, stating that the request for
attorney fees was a matter to be decided by the trial court on remand. Id. at 177. On remand,
both the plaintiffs and the defendants asked the trial court to award them attorney fees
incurred in the first appeal pursuant to Section 29-27-121. The trial court granted the request
4
We delve into the complicated facts involved in Chaille only to the extent necessary to explain Mr.
Gossum’s argument on appeal. See Chaille v. Warren, 689 S.W.2d 173, 175-77 (Tenn. Ct. App. 1985).
5
The property was actually sold in two parts. Chaille, 689 S.W.2d at 176-77.
6
That statute provides in full: “The court may, in its discretion, order the fees of the attorneys for the
complainant and defendant to be paid out of the common fund, where the property is sold for partition, and
taxed as cost in cases where the property is partitioned in kind.” T.C.A. § 29-27-121 (2000).
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and awarded attorney fees to the plaintiffs and to the defendants for fees incurred in the first
appeal. Id. at 178.
The defendants in Chaille appealed the award of appellate attorney fees to the plaintiffs,
arguing that the plaintiffs were not entitled to the award because they did not first request
such fees in the appellate proceedings. The appellate court rejected this argument and held
that the trial court was, indeed, the proper tribunal to award such fees. The appellate court
stated, “It would have been premature to request these fees prior to the appeal.” It went on
to say that “the only proper time to request fees for legal services performed on appeal would
be on the remand of the case.” Id. at 178 (citing Folk v. Folk, 357 S.W.2d 828, 828-29
(Tenn. 1962)). In another part of the opinion, the Chaille court reiterated that “the proper
time and place to request attorneys fees for services performed on appeal is on remand in the
trial court.” Id. It noted that, under Tennessee Code Annotated § 29–27–121, the trial court
“had the jurisdiction to make proper awards of attorneys fees from the proceeds of the sale
of Mr. Warren’s property.”7 Id. In the instant appeal, Mr. Gossum notes that Chaille is cited
in Pritchard on Wills and Administration of Estates for the proposition that “[t]he proper
time and place to request attorney’s fees for services performed on appeal is on remand to
the trial court.” See 2 J ACK W. R OBINSON, S R., ET AL., P RITCHARD ON W ILLS AND
A DMINISTRATION OF E STATES § 864 (7th ed. 2009).
In response, the Appellees claim that the matter is governed by Killingsworth v. Ted Russell
Ford, No. E2004-02597-COA-R3-CV, 2006 WL 26355 (Tenn. Ct. App. Jan. 5, 2006), aff’d,
205 S.W.3d 406 (Tenn. 2006). In Killingsworth, the plaintiffs purchased a previously-
unowned vehicle. They then sued the defendant sellers under the Tennessee Consumer
Protection Act (“TCPA”), alleging that the seller failed to advise them about damage
sustained by the vehicle prior to the sale. After a trial, the plaintiffs prevailed on the merits
and received an award of damages. The trial court also awarded the plaintiffs attorney fees
pursuant to Tennessee Code Annotated § 47-18-109(a)(1), which permits a trial court to
award “reasonable attorney’s fees and costs” to a person who prevails on a TCPA claim. See
T.C.A. § 47-18-109(e)(1) (2001).8 The defendant appealed the attorney fee award, and the
appellate court remanded the case for further factual findings related to the fee award.
Killingsworth, 205 S.W.3d at 407 (citing Killingsworth, 104 S.W.3d 530, 537 (Tenn. Ct.
App. 2002)).
7
Counsel for defendants also requested attorney fees incurred in the second appeal. This request was denied
because “the trial court is the proper forum for the determination of whether attorneys fees should be
awarded and their amount.” Chaille, 689 S.W.2d at 180.
8
That statute provides: “Upon a finding by the court that a provision of this part has been violated, the court
may award to the person bringing such action reasonable attorney’s fees and costs.” T.C.A. § 47-18-
109(e)(1).
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On remand, the plaintiffs in Killingsworth re-submitted their request for attorney fees, this
time including the attorney fees attributable to the first appeal. The trial court awarded the
plaintiffs a portion of the appellate attorney fees requested. The defendant appealed the
award of appellate attorney fees, arguing alternatively that such fees were either not covered
in the TCPA or that these plaintiffs could not recover such fees because they did not first
request the fees in the appellate proceedings. Id. at 407-08. The intermediate appellate court
held that appellate attorney fees were recoverable under the TCPA, but also held that a
request for such fees must first be made to the appellate court. Because such a request was
not made, the intermediate appellate court held that the plaintiff could not recover the fees.
Id. at 408. The plaintiffs appealed to the Tennessee Supreme Court.
On appeal, the Supreme Court affirmed the holding of the intermediate appellate court. It
agreed that appellate fees are recoverable under the TCPA, Tennessee Code Annotated § 47-
18-109(e)(1). It further held, however, that the first request for such fees must be made in
the appellate proceedings. Id. at 409-411. The plaintiffs argued that, under the holding in
Chaille, attorney fees incurred on appeal may first be requested in the trial court. The
Supreme Court disagreed; it distinguished Chaille because Chaille did not involve the
TCPA:
Relying on Chaille v. Warren, 689 S.W.2d 173 (Tenn. Ct. App. 1985), the
Killingsworths contend that “the only proper time to request fees for legal
services performed on appeal would be on the remand of the case.” Id. at 178.
We are not persuaded. In Chaille, the intermediate appellate court was not
construing the TCPA. Rather, the court addressed the effect of Tennessee
Code Annotated section 29–27–121 permitting an award of attorney’s fees
from the common fund created by the sale of partitioned land. All issues
related to the partition sale, including the payment of costs and fees, are
statutorily addressed to the trial court. Further, the court was not considering
the impact of Tennessee Rule of Appellate Procedure 27(a). In short, Chaille
is not apposite to the issue now before us. We hold that a plaintiff seeking to
recover reasonable attorney’s fees generated during an appeal of a case
brought under the TCPA must set forth his or her intention to do so in his or
her appellate pleadings.
Id. at 411.
In our view, both Chaille and Killingsworth are distinguishable, in that both involve a
request for appellate attorney fees based on statutory authority. In Chaille, the parties sought
appellate attorney fees pursuant to Section 29-27-121, which permits a trial court ordering
the partition and sale of land to award “fees of the attorneys for the complainant and
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defendant,” and provides that such fees are to be paid “out of the common fund.” T.C.A. §
29-27-121. Killingsworth involved a request for appellate attorney fees under the fee-
shifting provision of the TCPA, Section 47-18-109(e)(1), which permits an award of attorney
fees to the prevailing party in a TCPA action. Both cases concerned whether the trial court
had the authority to award fees incurred on appeal under the relevant statutes.
We agree with the trial court that, in most instances, a claim for appellate attorney fees must
first be made in the appellate court, as with a request for appellate attorney’s fees based on
a statutory or contractual right, or on the allegation that the appeal was frivolous.9 See, e.g.,
Brunswick Acceptance Co., LLC v. MEJ, LLC, 292 S.W.3d 638, 646-47 (Tenn. Ct. App.
2009); Williams v. Williams, 286 S.W.3d 290, 297 (Tenn. Ct. App. 2008). However, in this
case, we find that this general rule does not apply.
In this case, Mr. Gossum sought an award of appellate attorney fees for the services he
provided in defending his final accounting on appeal. As with the other attorney fees
requested, these fees were for services rendered on behalf of the estate and constitute an
administrative expense of the estate. “[T]he allowances to the personal representative for his
own services and reasonable counsel fees . . . are as proper charges against the estate as, for
example, funeral expenses.” Robinson, P RITCHARD ON W ILLS, supra § 864, at 21-18. In
general, for attorney fees incurred in the administration of an estate, “a primary question to
be determined is whether the services directly benefitted the estate.” Id. Here, of course Mr.
Gossum, as the administrator of th estate, made the decision to incur appellate attorney fees
for the first appeal. “Executors will be reimbursed for expenses incurred in good faith for
the exclusive and necessary benefit of the estate, even where they are not entirely free from
fault and negligence themselves.” Id.; see Martin v. Moore, 109 S.W.3d 305, 313 (Tenn.
Ct. App. 2003).
We note that, in its discussion on attorney fees allowable as an administrative expense of the
estate, Pritchard on Wills and Administration of Estates cites Chaille as support for the
proposition that “[t]he proper time and place to request attorney’s fees for services performed
on appeal is on remand in the trial court.” Robinson, P RITCHARD ON W ILLS, supra § 864, at
21-20 (citing Chaille, 689 S.W.2d at 179). Although Chaille is distinguishable because the
attorney fees in that case were sought under the partition statute, we nevertheless find it
instructive. As in Chaille, this case involves services rendered in the course of administering
9
Generally, Tennessee follows the American Rule, under which litigants must pay their own attorney fees
unless there is a statute or contract providing otherwise. Taylor v. Fezell, 158 S.W.3d 352, 359 (Tenn. 2005).
In the absence of such a fee-shifting statute, contract provision, or other recognized equitable ground, courts
may not compel a losing party to pay the attorney fees of the winning party. Brown & Williamson Tobacco
Corp., 18 S.W.3d at 194; Kultura, Inc. v. S. Leasing Corp., 923 S.W.2d 536, 540 (Tenn. 1996).
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a decedent’s estate, services provided for the benefit of the estate. More specifically, the
services rendered by Mr. Gossum on appeal in this case were in furtherance of his duties as
both the administrator and the attorney for the estate, and recovery was sought from the
estate, not from a non-prevailing party. “[I]t is well established that a personal representative
of an estate may be entitled to receive reasonable attorney fees from the estate, where . . . the
attorney’s services have inured to the estate’s benefit.” Martin, 109 S.W.3d at 313; see also
In re Wakefield, M1998-009210-COA-R3-CV, 2001 WL 1566117, at *24 (Tenn. Ct. App.
Dec. 10, 2001); T.C.A. § 30-2-317(a) (2007) (listing reasonable compensation to the personal
representative’s counsel among the types of administrative costs that are given first priority).
We see no reason why Mr. Gossum’s fee for representing the estate on appeal should be
treated differently than his fee for representing the estate in the trial court. Thus, as in
Chaille, we find that “the proper time and place to request attorneys fees for” such services
is in the trial court, along with the request for compensation for all the other services
rendered to the estate. See Chaille, 689 S.W.2d at 179.
Accordingly, we find that Mr. Gossum’s request for the approval of his attorney fees incurred
on appeal in the administration of an estate should be classified with the other requests for
attorney fees incurred in the administration of the estate. As such, the estate’s attorney need
not request such fees in the appellate court, and indeed would not make such a request in the
first instance to the appellate court. Therefore, we reverse the trial court’s decision to deny
Mr. Gossum’s request for attorney fees incurred in the first appeal, and we remand the cause
to the trial court for a determination as to Mr. Gossum’s reasonable attorney fee for his
efforts in the first appeal in this case. This direction on remand does not preclude Mr.
Gossum from requesting from the trial court an award of attorney fees incurred in this second
appeal.
C ONCLUSION
The decision of the trial court is reversed an the cause is remanded for further proceedings
consistent with this Opinion. Costs on appeal are to be taxed to Appellees Warner Dunlap,
Jr., and Dr. Mary Dunlap Wells, for which execution may issue, if necessary.
_________________________________
HOLLY M. KIRBY, JUDGE
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