                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                                January 26, 2012 Session

     IN RE THE DECEDANT ESTATE OF EDWARD LAVOY GLASSCOCK

                  Appeal from the Probate Court for Bedford County
                          No. 28676   J. B. Cox, Chancellor


                 No. M2011-01725-COA-R3-CV - Filed June 11, 2012


This appeal arises from the denial of a petition filed by the niece of a decedent’s surviving
spouse to have the decedent’s estate administered and to have a personal representative
appointed. The probate court dismissed the niece’s petition for lack of standing holding that
she could not proceed as next friend of her aunt because her aunt had previously appointed
the decedent’s brother as her attorney-in-fact. The niece contends on appeal that she has
standing to pursue the administration of the decedent’s estate in accordance Tenn. R. Civ.
Proc. 17.03 because the attorney-in-fact for her aunt failed to initiate administration of the
decedent’s estate. We affirm the dismissal of the petition.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which P ATRICIA J. C OTTRELL,
P. J., M. S., and A NDY D. B ENNETT, J., joined.

John Ralph Bumpus, Shelbyville, Tennessee, for the Appellant, Lynn Orr Chevalier.

Andrew Clark Rambo, Shelbyville, Tennessee, for the Appellee, Clarence Bernard
Glasscock.

                                         OPINION

I. Factual and Procedural History

       Edward Lavoy Glasscock (“Decedent”) passed away on July 21, 2008, survived by
his spouse, Lillian Katherine Orr Glasscock (“Mrs. Glasscock”). The Decedent executed a
Last Will and Testament on June 9, 2000 in which he named Mrs. Glasscock the “Personal
Representative” of the estate and left all of his property to her. On January 2, 2008, Mrs.
Glasscock executed a “General and Durable Power of Attorney” appointing Clarence
Burnard Glasscock (“Clarence”), Decedent’s brother, as her “Attorney In Fact.” Mrs.
Glasscock currently suffers from senile dementia and resides in a residential nursing facility.

       On March 3, 2011, Lynn Orr Chevalier, Mrs. Glasscock’s niece, filed a Petition for
Administration of Decedent Estate as next friend of Mrs. Glasscock. Mrs. Chevalier
requested the court to appoint her as personal representative of Decedent’s estate.1 On March
25, 2011, Clarence filed an Answer, asserting that Ms. Chevalier did not have standing to sue
as next friend of Mrs. Glasscock; he also filed a counter-petition, seeking recovery of items
taken from the Glasscock home.

       On April 6, 2011, Clarence filed a Motion for Judgment on the Pleadings pursuant to
Tenn. R. Civ. P. 12.03. He stated that he made the “conscious decision . . . not to probate the
will” because, in this case, the probate process was “an unnecessary process and expense to
be borne by the surviving spouse.” He further asserted that Ms. Chevalier is “without
standing to request appointment as administrator of the estate of [Decedent], as she is neither
next of kin to the decedent nor creditor of the decedent.” The court held a hearing on the
motion on April 15.

        On May 13, 2011 Ms. Chevalier filed a motion to amend her petition, alleging that the
General and Durable Power of Attorney executed in January 2008 is “defective and invalid”
because Mrs. Glasscock was “not competent” to execute the document. Also on May 13, the
trial court dismissed the case, holding that Ms. Chevalier lacked standing to sue as next
friend “in the face of the power of attorney.”

        On June 1, 2011, the court heard argument on Ms. Chevalier’s motion to amend the
petition. The court entered a Memorandum and Order on July 12 incorporating the May 13,
2011 Memorandum Opinion and denying Ms. Chevalier’s motion to amend. The court
stated:

               Now, after seeing the potential for having her petition dismissed, the
        Petitioner desires to amend by adding an allegation that the power of attorney
        is invalid. If these allegations pertained to [Decedent’s] power of attorney,
        these allegations would make sense. A personal representative would have
        standing against a power of attorney for a decedent, for actions taken by the
        power of attorney during the decedents [sic] lifetime, to recover for the estate
        losses due to the fiduciary’s breach of his fiduciary duty. (Emphasis added)


        1
          Attached to Ms. Chevalier’s Petition was a photocopy of the “General and Durable Power of
Attorney” appointing Clarence as attorney-in-fact for Mrs. Glasscock, a photocopy of Decedent’s Last Will
and Testament, and a photocopy of a warranty deed executed by Mrs. Glasscock’s attorney-in-fact.

                                                  -2-
                Here, counsel for the Petitioner attempts to breathe life into a probate
        case already dismissed by the Court. His [sic] allegations are perhaps correctly
        pled in an action for conservatorship of her Aunt. The Court has already urged
        this from the bench.

On July 19, Clarence voluntarily dismissed the counter-petition. Ms. Chevalier appeals the
dismissal of her petition as well as the trial court’s denial of her motion to amend.

II. Analysis

       The first issue we address is whether the trial court erred in granting Clarence’s
motion for judgment on the pleadings; specifically whether, under the facts alleged in the
Petition, Ms. Chevalier has authority to proceed as next friend of Mrs. Glasscock. The
standard of review for a trial court’s grant of judgment on the pleadings under Tenn. R. Civ.
P. 12.03 is as follows:

        [W]e construe the complaint in favor of the plaintiff “by taking all factual
        allegations in the complaint as true and by giving the plaintiff the benefit of all
        the inferences that can be reasonably drawn from the pleaded facts.”
        Satterfield v. Breeding Insulation Co., 266 S.W.3d 347, 352 n. 1 (Tenn. 2008)
        (citing Lanier v. Rains, 229 S.W.3d 656, 660 (Tenn. 2007); Cherokee Country
        Club, Inc. v. City of Knoxville, 152 S.W.3d 466, 470 (Tenn.2004)).
        Conclusions of law are not admitted and judgment on the pleadings should not
        be granted “unless the moving party is clearly entitled to judgment.” Cherokee
        Country Club, Inc., 152 S.W.3d at 470 (Tenn. 2004) (quoting McClenahan v.
        Cooley, 806 S.W.2d 767, 769 (Tenn. 1991)). This determination is a question
        of law, and we review the trial court's conclusions of law de novo with no
        presumption of correctness. Frye v. Blue Ridge Neuroscience Ctr., P.C., 70
        S.W.3d 710, 713 (Tenn. 2002) (citing Union Carbide Corp. v. Huddleston, 854
        S.W.2d 87, 91 (Tenn. 1993)); Bowden v. Ward, 27 S.W.3d 913, 916 (Tenn.
        2000) (citing Myint v. Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998)).

Watry v. Allstate Prop. & Cas. Ins. Co., M2011-00243-COA-R3CV, 2011 WL 6916802, at
*2 (Tenn. Ct. App. Dec. 28, 2011) (citations omitted).2


        2
           The trial court ruled on Clarence’s motion as one for failure to state a claim upon which relief can
be granted pursuant to Tenn. R. Civ. P. 12.02(6). The court’s framing of the issue is of little consequence,
because a Tenn. R. Civ. P. 12.03 motion for judgment on the pleadings is “‘in effect a motion to dismiss for
failure to state a claim upon which relief can be granted.’” King v. Betts, 354 S.W.3d 691, 709 (Tenn. 2011)
                                                                                                  (continued...)

                                                     -3-
       The trial court granted the motion for judgment on the pleadings, holding that the
power of attorney Mrs. Glasscock granted to Clarence, made Clarence an “other like
fiduciary” within the meaning of Tenn. R. Civ. P. 17.03, and thus, Ms. Chevalier lacked
standing to bring the Petition on behalf of Mrs. Glasscock. On appeal, Ms. Chevalier
contends that Clarence is obligated to probate the Decedent’s will, and that, in light of his
failure to initiate the administration of the estate, she has standing to bring a Petition
compelling the probate of Decedent’s will as next friend of Mrs. Glasscock pursuant to Tenn.
R. Civ. P. 17.03. Ms. Chevalier also relies on In re Thompson’s Estate, 314 S.W.2d 6 (Tenn.
1958) to support her contention that an administrator should be appointed.

       “The primary focus of a standing inquiry is on the party, not the merits of the claim.”
City of Brentwood v. Metro. Bd. of Zoning Appeals, 149 S.W.3d 49, 56 (Tenn. Ct. App.
2004). An inquiry into whether a party has standing requires a “careful judicial examination
of a complaint’s allegations to ascertain whether the particular plaintiff is entitled to an
adjudication of the particular claims asserted.” Id. (citing Allen v. Wright, 468 U.S. 737, 752
(1984)). In the Petition, Ms. Chevalier alleged that she “fil[ed] the petition for administration
of the decedent estate of the said deceased husband of her Aunt in her behalf as her next
friend pursuant to Rule 17.03 Tennessee Rules of Civil Procedure.” She further alleged:

       9. In light of the foregoing facts concerning (i) the mental state of Lillian
       Katherien Orr Glasscock who is legally entitled to administer her deceased
       husband’s decedent estate but who is mentally and physically unable to do so
       or to execute a written waiver of her right to so administer; and (ii) the refusal
       of Clarence Burnard Glasscock for more than two and one-half (2 ½) years to
       undertake such responsibility of administration including various reporting
       responsibilities to the State of Tennessee . . . ; and (iii) the hostility that
       apparently exists between him and the petitioner, Lynn Orr Chevalier; and (iv)
       in light of the kinship existing between Ms. Glasscock and Ms. Chevalier, the
       Petitioner requests that she be appointed as Personal Representative of Edward
       Lavoy Glasscock Decedent Estate.

Ms. Chevalier requested the court to appoint a “Personal Representative (i.e., fiduciary) of
the Edward Lavoy Glasscock Decedent Estate.”




       2
           (...continued)
(quoting Timmins v. Lindsey, 310 S.W.3d 834, 838 (Tenn. Ct. App. 2009); citing Waldron v. Delffs, 988
S.W.2d 182, 184 (Tenn. Ct. App. 1998) (citing 3 Nancy F. MacLean & Bradley A. MacLean, Tennessee
Practice 190 (2d ed.1989))).

                                                 -4-
        The pivotal issue then is whether, under the facts alleged in her Petition, Ms.
Chevalier has authority to proceed as next friend of Mrs. Glasscock. Tenn. R. Civ. P. 17.03
states:

       Whenever an infant or incompetent person has a representative, such as a
       general guardian, conservator, or other like fiduciary, the representative may
       sue or defend on behalf of the infant or incompetent person. If an infant or
       incompetent person does not have a duly appointed representative, or if justice
       requires, he or she may sue by next friend. The Court shall at any time after
       the filing of the complaint appoint a guardian ad litem to defend an action for
       an infant or incompetent person who does not have a duly appointed
       representative, or whenever justice requires. The court may in its discretion
       allow the guardian ad litem a reasonable fee for services, to be taxed as costs.

Tenn. R. Civ. P. 17.03 (emphasis added). The power of attorney Ms. Glasscock executed in
favor of Clarence stated, in relevant part:

       I, LILLIAN KATHERINE GLASSCOCK, hereby constitute and appoint
       CLARENCE BURNARD GLASSCOCK, as my true and lawful Attorney In
       Fact, for me and in my name and place to do and perform all of he [sic] things
       herein stated . . . It is expressly provided that this power of attorney shall not
       be affected by subsequent disability or incapacity if such should occur. The
       powers hereby conferred are as follows:
       ...
       6. To commence and prosecute in my behalf any suits whatever in law or
       equity my Attorney In Fact may deem necessary including but not limited to
       actions for the recovery of possession of real and personal property I may be
       or become entitled to the possession of, and to make any bonds and comply
       with any rules or laws in connection with the prosecution of any such actions;
       and to satisfy, settle and compromise any claims in such actions.

       “The execution and exercise of a power of attorney establishes a fiduciary relationship
between the attorney-in-fact and the grantor of the power.” Ralston v. Hobbs, 306 S.W.3d
213, 221 (Tenn. Ct. App. 2009). Such a relationship constitutes the “other like fiduciary”
contemplated by Tenn. R. Civ. P. 17.03; therefore Ms. Chevalier is not entitled to act as next
friend of Mrs. Glasscock.

       The case relied upon by Ms. Chevalier, In re Thompson’s Estate, is not applicable to
the case at bar. In In re Thompson’s Estate, our Supreme Court reviewed the trial court’s
appointment of an administrator for the estate of a person who was killed in an automobile

                                              -5-
accident. The appointment was sought by the administrator of the estates of two persons also
killed in the accident for the sole purpose of bringing a tort action against the decedent’s
estate, in light of the failure of the widow or children of the decedent to initiate
administration of the estate. The court construed and applied Tenn. Code. Ann. § 30-109,
currently Tenn. Code. Ann. § 30-1-106, and, in upholding the trial court’s appointment of an
administrator, acknowledged that “when the parties entitled to priority under this statute have
refused, or declined to act, then an aggrieved party may in such cases apply to the county
court for appointment of an administrator.” In re Thompson’s Estate, 314 S.W.2d at 8. In
the instant case, Ms. Chevalier is not seeking to bring a tort action or any other claim against
the Decedent’s estate; rather, she seeks only to probate the will of the decedent.3 This is a
decision to be made by the surviving spouse and the trial court correctly held that Clarence
was the proper person to act in the place of Ms. Glasscock and that, as a consequence, Ms.
Chevalier lacked standing to proceed as next friend of Ms. Glasscock.

      We next consider whether the trial court erred in denying Ms. Chevalier’s motion to
amend her petition. Tenn. R. Civ. P. 15.01 provides in pertinent part that:

       A party may amend the party's pleadings once as a matter of course at any time
       before a responsive pleading is served or, if the pleading is one to which no
       responsive pleading is permitted and the action has not been set for trial, the
       party may so amend it at any time within 15 days after it is served. Otherwise
       a party may amend the party's pleadings only by written consent of the adverse
       party or by leave of court; and leave shall be freely given when justice so
       requires.

Courts have identified several factors that could warrant the denial of a motion to amend a
pleading, despite the instruction that leave to amend is to be “freely given” including: “(1)
undue delay in seeking the amendment, (2) lack of notice to the opposing party, (3) bad faith
or dilatory motive of the moving party, (4) repeated failure by the moving party to cure
deficiencies in earlier amendments, (5) futility of the proposed amendment, and (6) undue
prejudice to the opposing party.” Hardcastle v. Harris, 170 S.W.3d 67, 81 (Tenn. Ct. App.
2004). The court’s ruling on a motion to amend is a discretionary one that will not be
reversed unless abuse of discretion has been shown. See Welch v. Thuan, 882 S.W.2d 792,
793 (Tenn. Ct. App. 1994). A court abuses its discretion when it “applie[s] an incorrect legal
standard, or reache[s] a decision which is against logic or reasoning that cause[s] an injustice
to the party complaining.” Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).




       3
           We note also that Tenn. Code Ann. § 30-1-106, by its terms applies to intestate estates.

                                                    -6-
        We have examined Ms. Chevalier’s motion to amend the petition in light of the
foregoing factors, the nature of this proceeding, and the issues involved, and hold that the
trial court properly denied her motion. The claim raised in the proposed amendment was not
related to the administration of the decedent’s estate in any regard; rather, it sought to
invalidate the power of attorney granted by Ms. Glasscock, the beneficiary of the decedent’s
estate. Therefore, we find that the trial court did not abuse its discretion in denying the
motion to amend.4

III. Conclusion

        For the foregoing reasons, we affirm the trial court in all respects.




                                                 ___________________________________
                                                 RICHARD H. DINKINS, JUDGE




        4
          As noted by the trial court, Ms. Chevalier may file a conservatorship proceeding if she wishes to
challenge the validity of the power of attorney.

                                                   -7-
