                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                        May 20, 2014 Session

           IN RE: CONSERVATORSHIP OF MAURICE M. ACREE, JR.

                 Direct Appeal from the Probate Court for Davidson County
                          No. 06P-1603     Walter C. Kurtz, Judge


                     No. M2013-02588-COA-R3-CV - Filed June 11, 2014


The trial court approved and affirmed the final accounting of a trust held in a conservatorship
estate and closed the conservatorship following the death of the Ward. We affirm.

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

D AVID R. F ARMER, 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.

George Ellis Copple, Jr., Nashville, Tennessee, and Suzette Peyton, Brentwood, Tennessee,
for the appellant, William Q. Acree.

C. Dewey Branstetter, Jr. and Stacey K. Skillman, Nashville, Tennessee, for the appellee,
Nancy Acree.

Mary Beth Boone, Pro Se.

June House, Pro Se.

                                   MEMORANDUM OPINION 1



       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION”, shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
        This is the third time matters arising from protracted, onerous litigation over trust
assets held by a conservatorship have come before this Court. We find it unnecessary to
restate the background facts and tortured procedural history of this case. As noted in
Conservatorship of Acree v. Acree, No. M2011–02699–COA–R3–CV, 2012 WL 5873578
(Tenn. Ct. App. Nov. 20, 2012), perm. app. denied (Tenn. Mar. 20, 2013) (“Acree I”), and
In re: Conservatorship of Acree, No. M2013-01905-COA-R3-CV, (Tenn. Ct. App. filed June
4, 2014)(“Acree II”), litigation between the parties has been on-going since 2006 and has
resulted in substantial depletion of assets contained in two trusts for which Dr. Maurice M.
Acree, Jr. (Dr. Acree) served as trustee until he became incapacitated and conservatorship
proceedings were initiated in 2006. The current appeal arises from the trial court’s October
18, 2013, order denying a Tennessee Rules of Civil Procedure Rule 60 motion filed by
Appellant William Q. Acree (“William”), Dr. Acree’s son; the trial court’s October 24, 2013,
order concluding the conservatorship; and the trial court’s November 5, 2013, order
approving the final accounting of the Maurice Acree Trust (“the MAT”) and the
conservatorship.

                                     Issues Presented

       William presents the following issues for our review, as stated by him:

       1.     Did the probate court err by approving a final accounting of a Trust
              without first requiring funds wrongfully disbursed from the Trust to be
              recovered and repaid to it when the Court of Appeals in a previous
              appeal of the same case had already ruled that the funds were
              improperly disbursed and that the probate court should rectify on
              remand the error of approving said disbursements?

       2.     Did the probate court err by approving a final accounting of a Trust
              from which funds had been disbursed for attorney’s fees and which
              disbursements were ruled by the Court of Appeals in a previous appeal
              of the same case to have been improper and where the only reason
              given by the probate court for not requiring the funds to be recovered
              and repaid into the Trust was that the several improper orders
              approving said disbursements of attorney’s fees were interlocutory and
              interim orders for attorney’s fees that should be considered final and
              beyond appeal under Tennessee law despite being inconsistent with the
              definition of final judgment in Rule 54.02, T.R.C.P.?

       3.     Did the probate court err in refusing to revise and correct previous
              orders of the court pursuant to Rule 60.02, T.R.C.P., that provides for

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              revision and correction of orders entered for any other just reason when
              the Court of Appeals in a previous appeal of the same case had ruled
              that all such previous orders, even though deemed final, had been
              entered in plain error and should therefore be “addressed” and not
              ignored?

       4.     Was the probate court’s refusal to apply Rule 60.02 to correct orders
              entered by mistake a failure to follow a binding principle of
              constitutional jurisprudence, that “where there is a right, there must
              always be a remedy”?

                                         Discussion

        We turn first to William’s assertion that the trial court erred by approving the final
accounting of the MAT without first requiring the repayment of attorney’s fees approved for
payment from the MAT prior to this Court’s opinion in Acree I. In his brief, William notes
that his argument with respect to this issue is the same argument asserted with respect to the
Clara Carter Acree Trust (“CCAT”) in Acree II. We agree, and accordingly repeat the
holding of Acree II:

       In Acree I, the Court did not order yet another re-hashing of previously
       litigated attorney’s fees. . . .

       . . . . In light of our holding that the relevant trial court’s orders approving
       such fees were final and not appealable, our holding in Acree I became
       applicable to prospective orders.           Neither the trial court nor the
       conservatorship was required to sift through this voluminous record to re-
       examine and re-adjudicate requests for attorney’s fees.

Acree II, No. M2013-01905-COA-R3-CV, (Tenn. Ct. App. filed June 4, 2014).

       As noted by William in his brief, the second issue presented on appeal likewise was
raised and discussed in Acree II. We thus find it unnecessary to address the issue other than
to repeat that it is res judicata and, to the extent to which Acree I should be overruled, we
decline. The supreme court denied permission to appeal in Acree I, and Acree I establishes
the law of the case.

        We accordingly turn to the third and forth issues presented on appeal in this matter.
In his brief, William asserts that the trial court erred by denying his August 2013 Rule 60.02
motion “for relief from previous orders deemed final by the Court of Appeals and from

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orders entered after the period of finality.” He argues that, under Acree I, no attorneys fees
were payable from the MAT and that the trial court erred by refusing to set aside its previous
orders pursuant to William’s Rule 60.02(5) motion, which provides a mechanism to remedy
earlier, final orders entered by the trial court.

       Rule 60.02 provides:

               On motion and upon such terms as are just, the court may relieve a party
       or the party’s legal representative from a final judgment, order or proceeding
       for the following reasons: (1) mistake, inadvertence, surprise or excusable
       neglect; (2) fraud (whether heretofore denominated intrinsic or extrinsic),
       misrepresentation, or other misconduct of an adverse party; (3) the judgment
       is void; (4) the judgment has been satisfied, released or discharged, or a prior
       judgment upon which it is based has been reversed or otherwise vacated, or it
       is no longer equitable that a judgment should have prospective application; or
       (5) any other reason justifying relief from the operation of the judgment. The
       motion shall be made within a reasonable time, and for reasons (1) and (2) not
       more than one year after the judgment, order or proceeding was entered or
       taken. A motion under this Rule 60.02 does not affect the finality of a
       judgment or suspend its operation, but the court may enter an order suspending
       the operation of the judgment upon such terms as to bond and notice as to it
       shall seem proper pending the hearing of such motion. This rule does not limit
       the power of a court to entertain an independent action to relieve a party from
       a judgment, order or proceeding, or to set aside a judgment for fraud upon the
       court. Writs of error coram nobis, bills of review and bills in the nature of a
       bill of review are abolished, and the procedure for obtaining relief from a
       judgment shall be by motion as prescribed in these rules or by an independent
       action.

        We review a trial court’s disposition of a Rule 60.02 motion for relief for an abuse of
discretion. E.g, Discover Bank v. Morgan, 363 S.W.3d 479, 487 (Tenn. 2012). An abuse of
discretion occurs “‘only when the trial court applied incorrect legal standards, reached an
illogical conclusion, based its decision on a clearly erroneous assessment of the evidence, or
employed reasoning that causes an injustice to the complaining party.’” Id. (quoting State
v. Jordan, 325 S.W.3d 1, 39 (Tenn. 2010) (quoting State v. Banks, 271 S.W.3d 90, 116
(Tenn. 2008))). This standard does not allow an appellate court to substitute its judgment for
that of the trial court. Id. (citing see Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001);
Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003)). Rather, “[u]nder the abuse of discretion
standard, a trial court’s ruling ‘will be upheld so long as reasonable minds can disagree as
to [the] propriety of the decision made.’” Id. (quoting Eldridge, 42 S.W.3d at 85 (quoting

                                              -4-
State v. Scott, 33 S.W.3d 746, 752 (Tenn. 2000))).

       In his August 2013 motion, William asserted that the motion was “based” on Acree
I, which was filed in November 2012. He relied on Acree I for the proposition that none of
Nancy Acree’s (Mrs. Acree’s) attorney’s fees were properly payable from the assets of the
MAT and that Acree I required the trial court to order repayment upon demand. He further
asserted that the trial court erred by awarding fees in the amount of $92,000 and $90,000 by
orders entered September 6, 2012, and July 15, 2013, respectively.

        As noted above, Acree I did not require the parties or the trial court to re-examine
previous attorneys’ fees awards. Contrary to William’s assertion in his brief, we did not
direct the trial court to “address” final orders awarding attorney’s fees prior to November 20,
2012, when Acree I was filed. Rather, we addressed the issue of whether William’s and Mrs.
Acree’s personal attorney’s fees were properly payable from the trusts contained in the
conservatorship estate. Clearly, there is no basis for an award of fees to William under the
terms of the trusts or statutes. Additionally, Mrs. Acree’s personal attorney’s fees are not
payable from the conservatorship. However, fees incurred by Mrs. Acree in her role as
conservator are payable from the conservatorship assets to the extent provided by Tennessee
Code Annotated § 34-1-113. In Acree II, we affirmed the trial court’s July 15, 2013, order
awarding attorney’s fees in the amount of $90,000 to Mrs. Acree.2 Discerning no abuse of
discretion on the part of the trial court, we affirm the trial court’s judgment denying
William’s Rule 60.02 motion.

                                               Holding

        In light of the foregoing, the judgment of the trial court is affirmed. Costs on appeal
are taxed to the Appellant, William Q. Acree, and his surety, for which execution may issue
if necessary. Because this appeal was filed before oral argument was heard in Acree II -
indeed, oral argument of the instant appeal and Acree II were heard on the same day -
Appellees’ requests for damages for a frivolous appeal are denied. This matter is remanded
to the trial court for enforcement of the judgment and the collection of costs.




                                                        _________________________________
                                                        DAVID R. FARMER, JUDGE



        2
        Mrs. Acree requested attorney’s fees in excess of $168,000 for fees incurred from July 1, 2012 to
March 8, 2013.

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