                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                 JULY 28, 2010 Session

    JOHN H. MEEKS, TRUSTEE OF MARITAL TRUST AND CREDIT
    SHELTER TRUST U/W/O MICHAEL HOLLIDAY v. SUCCESSOR
   TRUSTEES OF MARITAL TRUST AND CREDIT SHELTER TRUST
                 U/W/O MICHAEL HOLLIDAY

              Direct Appeal from the Chancery Court for Shelby County
                   No. CH-08-0964-2    Arnold Goldin, Chancellor


               No. W2009-02016-COA-R3-CV - Filed September 1, 2010


The plaintiff served as the trustee of two trusts for several years. After he was informed that
his services were no longer needed, the plaintiff claimed that he was entitled to compensation
in the form of trustee’s fees for his service. The trial court ruled, on a motion for summary
judgment, that the plaintiff had waived his right to trustee’s fees and that he was equitably
estopped from claiming such fees. The plaintiff appeals. We affirm.


 Tenn. R. App. P. 3; Appeal as of Right; Judgment of the Chancery Court Affirmed

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which DAVID R.
FARMER, J., and HOLLY M. KIRBY, J., joined.

Lawrence M. Magdovitz, Cordova, Tennessee, for the appellant, John H. Meeks, Trustee
of Marital Trust and Credit Shelter Trust u/w/o Michael Holliday

R. Mark Glover, Kristine L. Roberts, Jacob A. Dickerson, Memphis, Tennessee, for the
appellees, Successor Trustees of Marital Trust and Credit Shelter Trust u/w/o Michael
Holliday
                                               OPINION

                               I.   F ACTS & P ROCEDURAL H ISTORY

       Michael Edward Holliday died on August 31, 2001. Mr. Holliday’s will established
two trusts: the Michael Edward Holliday Credit Trust, and the Marital Trust. The
beneficiaries of the trusts were Mr. Holliday’s wife and the couple’s three sons. The will
appointed John Meeks (“Plaintiff”) to serve as trustee of the two trusts, as he was a close
personal friend of the Holliday family. Plaintiff accepted the appointment as trustee and
served in that capacity for several years. In May of 2007, Mrs. Holliday sent an e-mail
message to Plaintiff, thanking him for his service as trustee and informing him that she had
decided to become the trustee of the Marital Trust and that her sons would be serving as co-
trustees of the Credit Trust.

       In September of 2007, Plaintiff sent a letter directly to the trusts’ investment manager
at Morgan Stanley, in which Plaintiff stated that he was acting as trustee of the trusts, and he
requested a check for nearly $250,000 for “trustee’s fees” for the years 2002 through 2006.
When the Hollidays objected, Plaintiff filed this lawsuit in chancery court.

        Plaintiff’s complaint set forth three causes of action against the Hollidays: a “claim
for compensation for serving as trustee,” a claim for unjust enrichment, and a request for a
declaratory judgment that Plaintiff was replaced as trustee by the Hollidays and also released
from any liability for his actions or inactions as trustee. Plaintiff sought $249,033 in trustee’s
fees,1 plus expenses, attorney’s fees, and costs. Plaintiff claimed that he was entitled to
trustee’s fees based upon the following provision of Mr. Holliday’s will:

        Any person who serves as Executor and/or Trustee under this Will, shall be
        entitled to reasonable compensation for his or its services as such Executor
        and/or Trustee.

Plaintiff also claimed that he was entitled to an award of his attorney’s fees, whether he was
ultimately awarded trustee’s fees or not, due to a provision of the will granting numerous
powers to the executor and/or trustee, including the power

        To employ such agents, accountants, attorneys and/or financial or investment
        advisors, who may be my Executor, or a firm or corporation in which my
        Executor may be interested; open and maintain such so-called “custody” or


        1
         According to the complaint, Plaintiff calculated the amount of his fees as “1.0% of the Trust assets
per annum for the years of 2001 through 2007.”

                                                    -2-
       “safekeeping” accounts as they may deem appropriate for the proper
       management and administration of my estate or the trusts hereby created, or for
       legal, accounting, financial or investment advisory services in connection
       therewith; and allow and pay to such agents, accountants, attorneys, advisers
       and/or custodians requisite compensation, plus all necessary costs and
       disbursements, without prior judicial approval.

The Hollidays filed an answer denying that Plaintiff was entitled to compensation, attorney’s
fees, or costs, and raising the affirmative defenses of waiver, estoppel, laches, and/or the
statute of limitations, among other things.

        The Hollidays subsequently filed a motion for summary judgment as to counts one and
two of the complaint (the compensation claim and the unjust enrichment claim), asserting
that such claims were barred by waiver, estoppel, laches, and/or the statute of limitations.
The Hollidays also argued that there was no basis for an award of Plaintiff’s attorney’s fees.
In support of their motion, the Hollidays submitted Plaintiff’s response to their requests for
admissions, in which Plaintiff admitted that “after Mike Holliday’s death, Donna Holliday
and various members of her family lived in [my wife’s] and my home for about six weeks.
During that time, I remember one short conversation with Donna Holliday in which I brought
up the subject of Trustee fees. At that time I stated words to the effect that I would not take
a fee for my services as Trustee. I deny that such verbal statement constitutes an enforceable
promise or agreement.” It was undisputed that Plaintiff was never paid any compensation
while serving as trustee. Plaintiff also admitted during discovery that on multiple occasions
over the years, he approved the books, records, and tax returns of the trusts, in which there
was no mention of trustee compensation. He also conceded that he did not claim a right to
compensation or otherwise inform the Hollidays that he would be seeking compensation prior
to September 20, 2007, when he sent the letter to Morgan Stanley.

        In addition, the Hollidays submitted the affidavit of John Ivy, who had served as the
trusts’ tax accountant since the trusts were established. Mr. Ivy stated that he had met with
Plaintiff when preparing the trusts’ first tax returns in February or March of 2003. According
to Mr. Ivy, “At our meeting, [Plaintiff] stated in my presence that he would not take a fee as
Trustee. He stated that he was serving as Trustee because of his close relationship with Mike
Holliday and the Holliday family.” Mr. Ivy further explained during his deposition:

       [W]hen we got down to business, I said, John, are you going – you know, are
       you going to draw a fee? It’s not necessarily uncustomary for a trustee to
       collect a fee. And he said, oh, no, Mike and I are – I’m doing this as a favor
       to the family and Mike and I were best of friends and I just want to do
       whatever the Holliday family wants me to do.

                                              -3-
Mr. Ivy stated that the trusts’ tax returns never reflected any fee paid or due to Plaintiff as
trustee, and that Plaintiff never asked for or mentioned the payment of a trustee’s fee until
the fall of 2007.

       The Hollidays also submitted the affidavit of Joe Carney, who was Plaintiff’s business
partner at the time of Mr. Holliday’s death. Mr. Carney stated:

                Approximately two years after Mr. Holliday’s death, I had a
        conversation with [Plaintiff] in which he mentioned that he had been named
        as trustee of trusts established by Mr. Holliday’s will. We discussed the fact
        that I had another friend who was a trustee, and I said that my friend was not
        receiving any payment for serving as trustee. [Plaintiff] said that he, too, would
        never accept any payment for serving as trustee of the Holliday trusts.
                The fact that [Plaintiff] was trustee of the Holliday trusts came up
        during subsequent conversations. [Plaintiff] said multiple times that he would
        not accept any payment for serving as trustee of the Holliday trusts. He said
        that because of his long-standing friendship with Michael Holliday, he was not
        going to accept any payment.

The Hollidays contended that all of these facts demonstrated that Plaintiff had waived any
right to trustee’s fees.

        Plaintiff filed a response to the motion for summary judgment, in which he contended
that his statement to Mrs. Holliday about not taking a fee was being taken out of context from
the conversation in which the statement was made, although he did not elaborate on this
assertion. Regarding Mr. Ivy’s testimony, Plaintiff did not dispute that he told Mr. Ivy at
their first meeting that he would not take a trustee’s fee.2 However, he pointed out that Mr.
Ivy never inquired again as to whether Plaintiff would take a trustee’s fee, and Plaintiff did
not state again in subsequent years that he would not accept a fee. Regarding the statement
of Mr. Carney, Plaintiff’s former business partner, Plaintiff pointed out that during his
deposition, Mr. Carney said he could not recall whether Plaintiff actually used the term
“trustee” fees when stating that he would never accept fees from the family.

        Plaintiff’s response to the motion for summary judgment further alleged that he was
entitled to compensation because one of Mr. Holliday’s sons allegedly told him, in March
2007, that he was entitled to trustee’s fees according to the will. During Plaintiff’s


        2
          Plaintiff testified that he did not recall the conversation with Mr. Ivy, but he said that Mr. Ivy is
“an excellent guy,” and “if he said I said it, I would agree that I probably said it. He’s that kind of guy. I
wouldn’t dispute that.”

                                                     -4-
deposition, he explained that there was “strife between the families at that time” due to a
deteriorating business relationship between Plaintiff’s son and one of the Hollidays’ sons.
Plaintiff said that Brad Holliday requested a meeting with Plaintiff and asked whether
Plaintiff would continue to serve as trustee, and Plaintiff said that he would. According to
Plaintiff, Brad Holliday asked Plaintiff if he knew that he was entitled to fees for serving as
trustee. However, Plaintiff said that he “just kind of aired that off” because of the strife
between the families and because he “didn’t see any sense in making that situation any more
difficult than it already was.” Nevertheless, Plaintiff claimed that “after careful
consideration,” he later decided to accept “the Hollidays’ offer of payment of Trustee fees.”

        The trial court entered an order on September 23, 2009, granting the Hollidays’
motion for summary judgment as to Plaintiff’s claim for compensation and his unjust
enrichment claim. The trial court found that Plaintiff waived any right to trustee’s fees “as
evidenced, among other things, by his statements and course of conduct over a period of six
years.” The court further found that Plaintiff was equitably estopped from claiming trustee’s
fees, as the Hollidays “could have replaced Plaintiff as Trustee much earlier had they known
he would later seek trustee’s fees, thereby avoiding payment of fees.” The trial court also
found that Plaintiff was not entitled to an award of attorney’s fees or costs. Regarding the
third count in Plaintiff’s complaint, the order stated that the court had not yet ruled on the
request for declaratory judgment and that it would remain pending.

        Nevertheless, on September 30, 2009, Plaintiff filed a notice of appeal, stating that he
was appealing “the final judgment” from September 23. He also filed an appeal bond and
a designation of the record on appeal. Upon realizing that the September 23 order was not
a final judgment, Plaintiff filed a motion in the trial court requesting permission to seek an
interlocutory appeal of the September 23 order, and alternatively requesting that the trial
court make the order final pursuant to Tennessee Rule of Civil Procedure 54.02. The
Hollidays subsequently filed a motion for summary judgment on the remaining declaratory
judgment claim, which the trial court granted on January 12, 2010. Having resolved all the
issues, then, the trial court’s order stated that Plaintiff’s motion for an interlocutory appeal
was moot. Plaintiff then proceeded to file an amended designation of the record on appeal
in order to pursue his appeal to this Court, but he did not file a second notice of appeal.
Instead, he relied upon the notice of appeal he had filed on September 30, 2009.

                                  II.   I SSUES P RESENTED

       Plaintiff presents the following issues, slightly restated, for review on appeal:

1.     Whether the trial court erred in holding that Plaintiff had waived or otherwise was
       equitably estopped from claiming trustee’s fees, such that summary judgment was

                                              -5-
        improper;
2.      Whether the trial court erred in holding that Plaintiff was not entitled to his attorney’s
        fees under the will.

Additionally, the Hollidays present the following issues for review:

3.      Whether Plaintiff failed to file an effective notice of appeal.
4.      Whether summary judgment was proper based on the alternative grounds of laches
        and/or the statute of limitations.

For the following reasons, we affirm the decision of the chancery court.3

                                   III.    S TANDARD OF R EVIEW

         A motion for summary judgment should be granted only “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.” Tenn. R. Civ. P. 56.04. “The party seeking the summary
judgment has the burden of demonstrating that no genuine disputes of material fact exist and
that it is entitled to a judgment as a matter of law.” Green v. Green, 293 S.W.3d 493, 513
(Tenn. 2009) (citing Martin v. Norfolk S. Ry., 271 S.W.3d 76, 83 (Tenn. 2008); Amos v.
Metro. Gov't of Nashville & Davidson County, 259 S.W.3d 705, 710 (Tenn. 2008)). “When
ascertaining whether a genuine dispute of material fact exists in a particular case, the courts
must focus on (1) whether the evidence establishing the facts is admissible, (2) whether a
factual dispute actually exists, and, if a factual dispute exists, (3) whether the factual dispute
is material to the grounds of the summary judgment.” Id. Not every factual dispute requires
the denial of a motion for summary judgment. Id. at 514. To warrant denial of a motion for
summary judgment, the factual dispute must be material, meaning “germane to the claim or
defense on which the summary judgment is predicated.” Id. (citing Eskin v. Bartee, 262
S.W.3d 727, 732 (Tenn. 2008); Luther v. Compton, 5 S.W.3d 635, 639 (Tenn. 1999)).

       When the party moving for summary judgment is a defendant asserting an affirmative
defense, he or she may shift the burden of production by alleging undisputed facts that show
the existence of the affirmative defense. Hannan v. Alltel Publ’g Co., 270 S.W.3d 1, 9 n.6
(Tenn. 2008). “If the moving party makes a properly supported motion, then the nonmoving
party is required to produce evidence of specific facts establishing that genuine issues of
material fact exist.” Martin, 271 S.W.3d at 84 (citing McCarley v. W. Quality Food Serv.,


        3
          We note that Plaintiff does not raise an issue on appeal regarding the unjust enrichment claim or
the declaratory judgment claim.

                                                   -6-
960 S.W.2d 585, 588 (Tenn. 1998); Byrd v. Hall, 847 S.W.2d 208, 215 (Tenn. 1993)). The
nonmoving party may satisfy its burden of production by:

       (1) pointing to evidence establishing material factual disputes that were
       over-looked or ignored by the moving party; (2) rehabilitating the evidence
       attacked by the moving party; (3) producing additional evidence establishing
       the existence of a genuine issue for trial; or (4) submitting an affidavit
       explaining the necessity for further discovery pursuant to Tenn. R. Civ. P.,
       Rule 56.06.

Id. (citing McCarley, 960 S.W.2d at 588; Byrd, 847 S.W.2d at 215 n.6).

       The resolution of a motion for summary judgment is a matter of law, which we review
de novo with no presumption of correctness. Martin, 271 S.W.3d at 84. However, “we are
required to review the evidence in the light most favorable to the nonmoving party and to
draw all reasonable inferences favoring the nonmoving party.” Id. (citing Staples v. CBL &
Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000)). Summary judgment is appropriate “when the
undisputed facts, as well as the inferences reasonably drawn from the undisputed facts,
support only one conclusion–that the moving party is entitled to a judgment as a matter of
law.” Green, 293 S.W.3d at 513 (citing Griffis v. Davidson County Metro. Gov't, 164
S.W.3d 267, 283-84 (Tenn. 2005); Pero's Steak & Spaghetti House v. Lee, 90 S.W.3d 614,
620 (Tenn. 2002)).

                                      IV.   D ISCUSSION

                                    A.   Notice of Appeal

       First, we must address the Hollidays’ contention that this Court lacks jurisdiction to
consider Plaintiff’s appeal. The Hollidays argue that Plaintiff’s notice of appeal was
ineffective because it was filed prior to the entry of the final order resolving the declaratory
judgment claim.

       Tennessee Rule of Appellate Procedure 4(d) provides, “A prematurely filed notice of
appeal shall be treated as filed after the entry of the judgment from which the appeal is taken
and on the day thereof.” Rule 4(d) “establishes the general rule that the right to appeal is not
lost by filing a notice of appeal before entry of the judgment appealed from.” Advisory
Comm’n Comment, Tenn. R. App. P. 4(d). Nonetheless, the Hollidays contend that Rule
4(d) is inapplicable to the situation before us, citing the Middle Section’s decision in
Bradford v. Bradford, No. 01-A-01-9603-CH00121, 1996 WL 303655 (Tenn. Ct. App. Jun.
7, 1996). In that case, the appellant had previously filed a premature notice of appeal when

                                              -7-
the trial court had not yet addressed the issue of back child support. Id. at *1. The Middle
Section had dismissed the appeal in 1995 for lack of a final order. Id. In 1996, the trial court
entered an agreed order addressing child support, but the appellant did not file a second
notice of appeal. Id. Instead, he filed a motion requesting an order allowing his case to go
back before the Court of Appeals based on his original “premature” notice of appeal. Id. at
*2. The Middle Section rejected the appellant’s request, with the following explanation:

               As explained in the Committee Comment, [Rule 4(d)] was for the
       limited purpose of preserving the validity of a notice of appeal filed after entry
       of final judgment but before the disposition of post-judgment motions such as
       motions to alter or amend. It was not intended to validate notices of appeal
       filed, for example, with the complaint. Nor was it intended to preserve the
       effectiveness of a notice of appeal from a non-final judgment when that appeal
       is dismissed by the appellate court for lack of a final judgment.

              When the previous appeal was dismissed, the appellant had the
       opportunity of petition to rehear and/or application for permission to appeal to
       the Supreme Court. Upon the expiration of the time for same or the exhaustion
       of such remedies, the judgment of this Court was final, and not subject to
       revision by this Court.

               The agreed order of February 1, 1996, if it completed the disposition of
       all issues before the Trial Court, constituted a final judgment from which a
       new appeal on all issues was available by timely notice of appeal which,
       apparently, was not filed.

Id. at *3. The Court stated that the first notice of appeal had “served its purpose by causing
a record to be transmitted to this Court. Having served its purpose, it became . . . useless for
any further purpose.” Id.

       Based on the Court’s statement in Bradford about the “limited purpose” of Rule 4(d),
the Hollidays apparently argue that Rule 4(d) only preserves the validity of a premature
notice of appeal if it was filed after the entry of a final judgment but before the disposition
of a post-judgment motion.

       The history of Rule 4(d) was discussed in Spann v. Abraham, 36 S.W.3d 452, 461
(Tenn. Ct. App. 1999):

             Several years after the adoption of the Tennessee Rules of Appellate
       Procedure, we were called upon to pass upon the effectiveness of a notice of

                                              -8-
       appeal filed before the trial court had disposed of a pending post-trial motion
       filed before the notice of appeal. A Western Section panel, construing Tenn.
       R. App. P. 4(a) as it read at the time, held that the notice of appeal was
       “premature” and that parties who did not file another notice of appeal after all
       pending post-trial motions were resolved were not entitled to an appeal as of
       right. See Steele v. Wolfe Sales Co., 663 S.W.2d 799, 803 (Tenn. Ct. App.
       1983). This decision caused the Tennessee Supreme Court to amend Tenn. R.
       App. P. 4 in 1984 to state that a prematurely filed notice of appeal would be
       treated as filed after the entry of a final order disposing of all the claims
       between all the parties. See Tenn. R. App. P. 4(d). Notices of appeal, in
       circumstances like those in the Steele case, were “premature,” . . . because they
       were filed before the trial court had resolved all the claims between all the
       parties.

Thus, we recognize that the Supreme Court was likely prompted to amend Rule 4 and address
premature notices of appeal due to the frequently encountered situation in which a party files
a notice of appeal prior to the resolution of post-trial motions. Subsection (e) of Rule 4 even
specifies that “A notice of appeal filed prior to the trial court’s ruling on a timely specified
[post-trial] motion shall be deemed to be premature and shall be treated as filed after the
entry of the order disposing of the motion and on the day thereof.”

         However, subsection (d), by its terms, does not limit its applicability to notices of
appeal filed while post-trial motions are pending. Rather, it broadly proclaims that “[a]
prematurely filed notice of appeal shall be treated as filed after the entry of the judgment
from which the appeal is taken and on the day thereof.” A “premature” notice of appeal, by
simple definition, is “one filed before the entry of a final judgment.” Savage v.
Hildenbrandt, No. M1999-00630-COA-R3-CV, 2001 WL 1013056, at *9 (Tenn. Ct. App.
Sept. 6, 2001). A notice of appeal is premature when it is filed before all the rights and
liabilities of all the parties are adjudicated. Tudors v. Bell, No. 01-A-01-9802-CV00103,
1999 WL 187331, at *2 (Tenn. Ct. App. Apr. 7, 1999). The Advisory Commission Comment
to Rule 4(d) states, without limitation, that Rule 4(d) “establishes the general rule that the
right to appeal is not lost by filing a notice of appeal before entry of the judgment appealed
from.”

       Furthermore, Rule 4(d) has not been interpreted as narrowly as Plaintiff suggests, with
the exception of the Bradford opinion.4 On numerous occasions, all three sections of this
Court have interpreted Rule 4(d) as preserving the validity of a notice of appeal that was
prematurely filed due to the entry of a non-final order that failed to resolve all the claims or

       4
           We note that Bradford has not been cited in any subsequent cases.

                                                   -9-
issues in a case, without regard to post-trial motions. In In re Conservatorship of
Ackerman, 280 S.W.3d 206, 209-10 (Tenn. Ct. App. 2008), for example, the appellant
“prematurely filed” a notice of appeal after the trial court named temporary co-conservators,
when it had not yet entered a final order resolving the conservatorship issue. Pursuant to
Rule 4(d), the Eastern Section “treated” her notice of appeal as being filed on the date when
the final order in the case was entered and concluded that it had jurisdiction to consider the
appeal. Id.; see also Thompson v. Logan, No. M2005-02379-COA-R3-CV, 2007 WL
2405130, at *9 (Tenn. Ct. App. Aug. 23, 2007) (involving a notice of appeal filed before
resolution of a pretrial motion for sanctions, where the Court described the notice of appeal
as “premature, [but] nevertheless effective” pursuant to Rule 4(d)); Christ v. Homonai, No.
W2006-00352-COA-R3-JV, 2006 WL 2633166, at *1-2 (Tenn. Ct. App. Sept. 14, 2006)
(involving a notice of appeal filed after parentage was established but prior to the
determination of custody); Grigsby v. Univ. of Tenn. Med. Ctr., No. E2005-01099-COA-R3-
CV, 2006 WL 408053, at *2 (Tenn. Ct. App. Feb. 22, 2006) (involving a notice of appeal
filed after the dismissal of one defendant, but while claims against other defendants remained
pending, which was nevertheless effective to appeal the non-final order dismissing the first
defendant); Howse v. Campbell, No. M1999-01580-COA-R3-CV, 2001 WL 459106, at *1-3
(Tenn. Ct. App. May 2, 2001) (same); Lawrence A. Pivnick, 2 Tenn. Cir. Ct. Prac. § 30:3
(2010 ed.) (“the filing of a notice of appeal before the entry of final judgment, where there
have been no post-trial motions, will be treated as if it had been filed after the final judgment
was entered”).

        The Court of Criminal Appeals applied Rule 4(d) in a similar manner in Johnson v.
State, No. E2001-00019-CCA-R3-PC, 2002 WL 1482770, at *2 (Tenn. Crim. App. July 11,
2002), where the petitioner filed his notice of appeal just after his hearing but nine days
before the entry of the judgment. The Court held that his premature notice of appeal “was
filed too early” but that it “must be treated as timely filed” pursuant to Rule 4(d). Id.

        In sum, we acknowledge that the Supreme Court was likely motivated to enact Rule
4(d), at least in part, to address notices of appeal that were filed after a judgment was entered
but prior to the resolution of post-trial motions. Nevertheless, the broad language utilized
by the Supreme Court in subsection (d) has not been interpreted as being limited to such
situations. We will apply Rule 4(d) in a manner consistent with the Courts’ applications in
Conservatorship of Ackerman, Thompson, Christ, and others. Thus, we find that Plaintiff’s
notice of appeal, filed prior to the final order addressing the declaratory judgment claim, was
prematurely filed, but pursuant to Rule 4(d), it shall be treated as timely filed.

       The Hollidays also present an alternative argument on appeal as to why Plaintiff’s
notice of appeal should be deemed ineffective. They claim that even if the notice of appeal
was not deficient due to its timing, Plaintiff “effectively withdrew” the notice of appeal after

                                              -10-
it was filed. They rely upon an email from Plaintiff’s counsel to the Hollidays’ counsel, in
which he stated:

       I just realized that this is an interlocutory appeal. I must have been having a
       senior moment. I should have listened to you. I’ll get the motion filed shortly.
       You can ignore the notice of appeal if it went out to you.

They further contend that they had no notice that Plaintiff intended to appeal due to the
confusion. In response, Plaintiff argues that it was clear to the Hollidays throughout the
proceedings that he intended to pursue an appeal, whether by means of an appeal as of right
or seeking an interlocutory appeal.

        The Hollidays do not cite any authority for their assertion that a notice of appeal can
be “withdrawn” in such a manner, and we are not aware of any. As such, we decline to hold
that a notice of appeal can be withdrawn based upon what one attorney allegedly told
another. Rule 15 of the Tennessee Rules of Appellate Procedure addresses voluntary
dismissals of appeals and provides, “An appeal may be dismissed by filing in the appellate
court a stipulation for dismissal signed by all parties or on motion and notice by appellant.”
Rule 4(e) specifies that an appellant who files a premature notice of appeal and decides to
terminate the appeal as a result of the trial court’s disposition of post-trial motions “shall file
in the appellate court a motion to dismiss the appeal pursuant to Rule 15.” Because these
procedures were not followed in the instant case, Plaintiff’s notice of appeal was not
withdrawn. We also find no merit in the Hollidays’ assertion that they had no notice that
Plaintiff intended to appeal the trial court’s ruling.

                                   B.    Waiver & Estoppel

        Now, we turn to the merits of this appeal. According to the Tennessee Uniform Trust
Code, “If the terms of a trust specify the trustee’s compensation, the trustee is entitled to be
compensated as specified[.]” Tenn. Code Ann. § 35-15-708(b). If the terms of the trust do
not specify the trustee’s compensation, the trustee is entitled to compensation that is
reasonable under the circumstances, unless the settlor, if living, or otherwise a majority of
the qualified beneficiaries, have otherwise agreed. Tenn. Code Ann. § 35-15-708(a).
Again, Mr. Holliday’s will provided that any person who served as trustee under the will was
entitled to “reasonable compensation for his or its services” as trustee.

       However, the Comments to the Official Text of section 708 of the Tennessee Uniform
Trust Code make clear that “A trustee may also agree to waive compensation[.]” Comment
to Tenn. Code Ann. § 35-15-708. A trustee may voluntarily forgo any claim to
compensation, and waiver may be inferred from conduct in some circumstances.

                                               -11-
Restatement (Third) of Trusts § 38 cmt. g (2003).5 “Many courts have recognized that a
trustee can waive compensation under a variety of circumstances.” Lyons ex rel. Lawing v.
Holder, 163 P.3d 343, 348 (Kan. Ct. App. 2007) (citing McCormick v. McCormick, 536
N.E.2d 419 (Ill. Ct. App. 1988)). “A trustee’s waiver of commissions is a fact to be shown
by the evidence, either by express declaration, or by acts and declarations manifesting an
intent and purpose not to charge commissions, or by a course of conduct from which such
intent and purpose may be implied.” 90A C.J.S. Trusts § 618 (2010). In sum, “where the
trustee either by words or deeds creates a basis for reasonable belief that compensation will
not be sought, the beneficiaries are entitled to rely on such belief.” 76 Am. Jur. 2d Trusts §
589 (2010).

        The party claiming a waiver has the burden of proving it by a preponderance of the
evidence. Jenkins Subway, Inc. v. Jones, 990 S.W.2d 713, 722 (Tenn. Ct. App. 1998).
Generally, “[a] waiver is a voluntary relinquishment by a party of a known right.” Chattem,
Inc. v. Provident Life & Acc. Ins. Co., 676 S.W.2d 953, 955 (Tenn. 1984) (citing Baird v.
Fidelity-Phenix Fire Ins. Co., 162 S.W.2d 384 (Tenn. 1942)). The doctrine of waiver
“concedes a right, but assumes a voluntary relinquishment of it.” Collins v. Summers
Hardware & Supply Co., 88 S.W.3d 192, 201 (Tenn. Ct. App. 2002). An express waiver
may be proven by an explicit declaration, by acts and declarations manifesting an intent and
purpose not to claim the supposed advantage, or by a course of acts and conduct. Chattem,
676 S.W.2d at 955; Team Design v. Gottlieb, 104 S.W.3d 512, 528 (Tenn. Ct. App. 2002).
An express waiver is distinguishable from an implied waiver, also known as equitable
estoppel or waiver by estoppel, which includes the following elements: “(1) Lack of
knowledge and of the means of knowledge of the truth as to the facts in question; (2) reliance
upon the conduct of the party estopped; and (3) action based thereon of such a character as
to change his position prejudicially.” Chattem, 676 S.W.2d at 955 (quoting Provident
Washington Ins. Co. v. Reese, 373 S.W.2d 613, 615 (Tenn. 1964)).

        Here, we find that the undisputed facts demonstrate that Plaintiff waived his right to
trustee’s fees. Plaintiff’s course of conduct and his own admissions clearly establish that he
knowingly and voluntarily waived his right to compensation as trustee. Plaintiff admitted
that after Mr. Holliday died, he had a conversation with Mrs. Holliday “in which [he] brought
up the subject of Trustee fees. At that time [he] stated words to the effect that [he] would not
take a fee for [his] services as Trustee.” “Explicit indications to the beneficiary that the
trustee would not or is not charging for services is sufficient to establish a waiver of


        5
           The Comment to the Official Text of section 708 of the Tennessee Uniform Trust Code cites
Restatement (Third) of Trusts § 38 cmt. g (Tentative Draft No. 2, approved 1999). The Restatement (Third)
of Trusts was formally adopted and promulgated by the American Law Institute on May 16, 2001. The 2003
version of comment (g) is identical to that in Tentative Draft Number 2, cited by the Comment.

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compensation.” Lyons ex rel. Lawing v. Holder, 163 P.3d 343, 348 (Kan. Ct. App. 2007).
In addition, Plaintiff did not deny that when the tax accountant asked him, at the beginning
of their dealings, “are you going to draw a fee?,” Plaintiff said that he would not and that he
was “doing this as a favor to the family.” Plaintiff conceded that he did not claim a right to
compensation or otherwise inform the Hollidays that he would be seeking compensation prior
to September 20, 2007, some four months after Mrs. Holliday informed him that she and her
sons were replacing him as trustee. When asked at his deposition if he sought trustee’s fees
in September of 2007 because of the strained relationship between the families, Plaintiff
replied, “I guess that would have to have played some part in it.”

        Plaintiff makes much of the fact that Brad Holliday allegedly told him, in March 2007,
that he was entitled to claim trustee’s fees under the will. However, Plaintiff himself testified
that his response to Brad was that he “just kind of aired that off” because “[t]here was a lot
of strife between the families at that time, and I didn’t see any sense in making that situation
any more difficult than it already was.” Thus, in our view, Plaintiff’s response could only
be viewed as yet another assurance to the Hollidays that he did not intend to seek
compensation.

      On appeal, Plaintiff appears to argue that the Hollidays cannot prevail on their waiver
defense because they did not prove that they relied on his statements that he would not seek
compensation. However, proof of reliance, while necessary under a theory of equitable
estoppel, is unnecessary where there has been an express waiver. Chattem, 676 S.W.2d at
956. “Oral or written statements relinquishing known rights or privileges constitute an
express waiver.” BMG Music v. Chumley, No. M2007-01075-COA-R9-CV, 2008 WL
2165985, at *5 (Tenn. Ct. App. May 16, 2008) (citing Grimsley v. Kittrell, No.
M2005-02452-COA-R3-CV, 2006 WL 2846298, at *3 (Tenn. Ct. App. Sept. 29, 2006)).

      In summary, we conclude that the trial court properly granted summary judgment to
the Hollidays because Plaintiff waived his right to trustee’s fees.

                                    C.    Attorney’s Fees

       Finally, we address Plaintiff’s contention that the trial court erred in concluding that
he was not entitled to an award of attorney’s fees. Plaintiff claims that “[t]he unequivocal
language of the Will provides all the authority that the Plaintiff needs to claim his attorney’s
fees and costs, even if the Court denies the Plaintiff’s requests for trustee fees.” He relies
upon the provision of the will that empowers the trustee

       To employ such agents, accountants, attorneys and/or financial or investment
       advisors, who may be my Executor, or a firm or corporation in which my

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       Executor may be interested; open and maintain such so-called “custody” or
       “safekeeping” accounts as they may deem appropriate for the proper
       management and administration of my estate or the trusts hereby created, or for
       legal, accounting, financial or investment advisory services in connection
       therewith; and allow and pay to such agents, accountants, attorneys, advisers
       and/or custodians requisite compensation, plus all necessary costs and
       disbursements, without prior judicial approval.

However, Plaintiff’s brief only includes the first and last parts of this provision, so that it
reads that the trustee is empowered “To employ such agents, accountants, attorneys and/or
financial or investment advisors, . . . ; and allow and pay to such agents, accountants,
attorneys, advisers and/or custodians requisite compensation, plus all necessary costs and
disbursements, without judicial approval.” Thus, Plaintiff claims that the will authorizes
anyone serving as trustee to hire attorneys, and he claims that “[i]t does not say for what.”
We disagree. Although the provision appears to include a misplaced semicolon, we read it
as authorizing the trustee “To employ such agents, accountants, attorneys and/or financial or
investment advisors, who may be my Executor, or a firm or corporation in which my
Executor may be interested; [and to] open and maintain such so-called ‘custody’ or
‘safekeeping’ accounts as they may deem appropriate for the proper management and
administration of my estate or the trusts hereby created, or for legal, accounting, financial
or investment advisory services in connection therewith . . . .” Therefore, Plaintiff, who was
removed as trustee long before suit was filed and no longer charged with managing and
administering the trusts, is not entitled to recover the attorney’s fees he incurred in bringing
this lawsuit.


                                      V.   C ONCLUSION

        For the aforementioned reasons, we affirm the decision of the chancery court. Costs
of this appeal are taxed to the appellant, John Meeks, and his surety, for which execution may
issue if necessary.

                                                     _________________________________
                                                     ALAN E. HIGHERS, P.J., W.S.




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