                 IN THE COURT OF APPEALS OF TENNESSEE
                            AT KNOXVILLE
                          Assigned on Briefs September 16, 2010

                        IN RE ESTATE OF BILLY JOE WALLS

                  Appeal from the Chancery Court for Anderson County
                    No. 09PB0056     William E. Lantrip, Chancellor




             No. E2010-00758-COA-R3-CV - FILED NOVEMBER 29, 2010


This appeal arises out of a challenge to the trial court’s subject matter jurisdiction. Upon the
death of the testator, Billy Joe Walls, wills executed by him were submitted for probate in
different states. Patricia Pemberton was appointed personal representative under a 2009 will
admitted to probate in the trial court. Barbara Brown is the appointed personal representative
under a 2007 will admitted to probate in the Circuit Court of Morgan County, Alabama.
Brown initiated these proceedings by filing a complaint in the trial court1 to contest the will
submitted by Pemberton. Subsequently, Brown sought summary judgment, asserting that the
trial court lacked subject matter jurisdiction. Alternatively, Brown moved to transfer the case
to Alabama under the doctrine of forum non conveniens. The trial court dismissed
Pemberton’s petition on both grounds. She appeals. We affirm as to the defense of lack of
subject matter jurisdiction.

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

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY and J OHN W. M CC LARTY, JJ., joined.

Robert W. Wilkinson, Oak Ridge, Tennessee, for the appellant, Patricia Pemberton.

Robert W. Knolton, Oak Ridge, Tennessee, for the appellee, Barbara Brown.

                                             OPINION


       1
       In an effort to avoid confusion, we will refer, throughout the remainder of this opinion, to the
Anderson County Chancery Court as the “trial court” and the Circuit Court of Morgan County as the
“Alabama court.”
                                                       I.

       On February 10, 2009, Walls died of lung cancer at the age of 77. Although he died
after being admitted to Parkwest Hospital in Knoxville, Walls had been living at Briarcliff
Nursing Home in Oak Ridge. He had only recently come to this state, having been a long-
time resident of Decatur, Alabama up until two weeks earlier, and was not in good health at
the time he arrived in Tennessee.

       Walls executed two wills, the first in 2007 and a second in 2009. The latter was
executed on January 23, 2009, on or about the same day he traveled from Alabama to
Tennessee, some two weeks before he died. Both documents were prepared by the same
attorney and executed by the deceased in Alabama. They were attested to by different
witnesses. Both begin with language stating that “I, Billy Joe Walls, of Morgan County,
Alabama, declare this to be my will.”

        On February 17, 2009, Brown, a self-described “long-time companion” of Walls, who
lived with him at times, submitted the 2007 will for probate in the Alabama court. The
following month, Pemberton, who is Walls’ stepdaughter, petitioned the trial court to admit
to probate the later will. The trial court entered an order admitting the 2009 will to probate.
It appointed Pemberton as the personal representative of the estate. In May 2009, Brown
filed suit in the trial court to contest the 2009 will.2 In her complaint, Brown alleged that
Walls was of unsound mind when he executed the 2009 will and was a resident of Alabama
at the time of his death. Pemberton denied these allegations.

        In June 2009, Brown moved in the trial court to dismiss for lack of subject matter
jurisdiction, and, alternatively, to transfer venue to the Alabama court as the more convenient
forum for the will contest. Brown then filed a motion for summary judgment on the same
two grounds. Brown essentially reasserted her position that Walls was an Alabama resident
at the time of his death, and, as a consequence of this fact, the trial court was deprived of
jurisdiction over the probate action instituted by Pemberton. In summary, Brown argued that

                 all of the documents and material before the [trial court],
                 including the two wills themselves, clearly show that [Walls]
                 was a resident of the state of Alabama at the time of his death.
                 There is no indication, even if [Pemberton] attempts to testify


        2
         Brown asserts that as a result of the submission of Walls’ purported later will in the trial court, the
probate case in the Alabama court was suspended.


                                                      -2-
                that [Walls] had ‘intended’ to change residence to [Tennessee],
                of any overt or direct action to transfer property to the state of
                Tennessee.

In opposing summary judgment, Pemberton essentially argued the opposite conclusion:

                [The trial court] has jurisdiction to probate [Walls’] Last Will
                and Testament. [Walls] was living in the state of Tennessee at
                the time of his death. [Walls] left . . . Alabama expressing an
                intention never to return. Alabama, therefore, lacks subject
                matter jurisdiction.

       In support of her contention that Walls had “abandoned his residency in Alabama,”
Pemberton relied upon her own affidavit and that of Melanie Brady, a caregiver to Walls in
the weeks before he left Alabama.3 The affidavits are generally to the effect that Walls
expressed a desire to move closer to Pemberton and to leave Alabama permanently. More
specifically, Pemberton stated that Walls called and requested that she come to Alabama to
help him move to Tennessee, stating that he “wanted to move to Tennessee and ‘never step
foot’ back in Alabama.” Similarly, Brady stated that Walls told her “several times that he
wanted to get away from [Brown,]” wanted to live closer to Pemberton, and “wanted to be
far away from Alabama and never come back.” Further, Walls “knew he was going to a
health care facility in Tennessee, but said when his health improved he would be living closer
to [Pemberton].”

      In its February 26, 2010 Order of Dismissal, the trial court set forth its findings and
conclusions as follows:

                [T]here are no controverted material facts in dispute, and the
                Court finds from such undisputed facts that [Walls] was a
                resident of the state of Alabama at the time of his death, and that
                his intention to move to the state of Tennessee is not enough to
                change his legal residence to the state of Tennessee, without any
                other action appearing on his part, and consequently, the Court
                finds that it does not have subject matter jurisdiction to proceed
                with the probate of the will submitted by . . . Pemberton.




       3
        For the purpose of this appeal, we assume, without deciding, that all of this testimony would be
admissible at trial.

                                                  -3-
              The Court further finds that the only issues involved in the will
              contest, and the will contest in existence in the state of Alabama
              . . . is the validity of the respective wills and the competency of
              [Walls] in executing such wills, and therefore, with all the
              witnesses and a will contest proceeding now pending in . . .
              Alabama, it would be better for further proceedings to take place
              in the Alabama courts. That this Court, in the exercise of its
              discretion finds that the forum non conveniens is applicable and
              this probate matter should be dismissed also for that reason.

              IT IS, THEREFORE, ADJUDGED AND DECREED, as
              follows:

              1. That the probate proceedings filed by [Pemberton] in this
              Court under the purported Last Will and Testament of [Walls],
              be, and the same is hereby dismissed for lack of subject matter
              jurisdiction of this Court to probate such will.

              2. That further, this probate matter should be, and it is hereby
              dismissed as being the inconvenient forum to proceed with the
              will contest filed in this probate proceeding.

(Capitalization in original.) In short, the trial court agreed with Brown’s motion on both
points. The instant appeal by Pemberton followed.

                                              II.

       Pemberton presents two issues for our review:

              1. Did the trial court err in granting summary judgment in favor
              of Brown?

              2. Did the trial court err in determining that venue of the will
              contest action was properly transferred to the state of Alabama
              under the doctrine of forum non conveniens?

                                             III.

        The purpose of summary judgment is to resolve controlling issues of law rather than
to find facts or resolve disputed issues of fact. Bellamy v. Fed. Express Corp., 749 S.W.2d

                                              -4-
31, 33 (Tenn. 1988). Summary judgment is appropriate only when the moving party
demonstrates that there are no genuine issues of material fact and that he or she is entitled
to judgment as a matter of law. See Tenn. R. Civ. P. 56.04; Penley v. Honda Motor Co., 31
S.W.3d 181, 183 (Tenn. 2000); Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993). In
reviewing the record, “courts must view the evidence in the light most favorable to the
nonmoving party and must also draw all reasonable inferences in the nonmoving party’s
favor.” Staples v. CBL & Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). “If both the facts and
conclusions to be drawn therefrom permit a reasonable person to reach only one conclusion,
then summary judgment is appropriate.” Seavers v. Methodist Med. Ctr. of Oak Ridge, 9
S.W.3d 86, 91 (Tenn. 1999). Because this inquiry involves a question of law only, our
standard of review is de novo with no presumption of correctness attached to the trial court’s
conclusions. See Mooney v. Sneed, 30 S.W.3d 304, 306 (Tenn. 2000); Carvell v. Bottoms,
900 S.W.2d 23, 26 (Tenn. 1995).

                                             IV.

       As we have noted, the trial court’s ruling was based on its conclusion that it lacked
subject matter jurisdiction of this probate case based on its determination that the undisputed
material facts showed that Walls, as a matter of law, was a resident of Alabama when he
died. Pemberton argues that in so holding, the trial court ignored evidence establishing
“genuine issues of material fact regarding [Walls’] intention to establish residency in . . .
Tennessee.” We cannot agree with Pemberton’s conclusion.

       Subject matter jurisdiction concerns the authority of a particular court to hear a
particular controversy. Meighan v. U.S. Sprint Communications, 924 S.W.2d 632, 639
(Tenn. 1996). Courts may not adjudicate a civil claim without having jurisdiction over both
the subject matter and the parties. Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994).
Tenn. Code Ann. 16-16-201(a) provides that in

              all counties where not otherwise specifically provided by public,
              private, special or local acts, all jurisdiction relating to the
              probate of wills and the administration of estates of every nature
              . . . is hereby vested in the chancery court of the respective
              counties. The chancery court in such counties shall have
              exclusive jurisdiction over the probate of wills and the
              administration of estates . . . .

      “The general rule is that the Probate Court of the state in which the testator was
domiciled at the time of his death has jurisdiction for the probate of his will.” Svoboda v.
Svoboda, 61 Tenn. App. 444, 455-56; 454 S.W.2d 722, 727 (1969)(citing 57 Am.Jur. Wills,

                                              -5-
Section 766, page 523); McCutchen v. Ochmig, 60 Tenn. 390 (1872)). In explanation, it has
been said that “[t]he principle is fundamental that the law of the domicil governs the
distribution of the assets of a decedent.” In re Estate of Stein, 78 Wn. Ct. App. 251, 261,
896 P.2d 740 (1995). The Tennessee Supreme Court has long observed that in Tennessee,
“[t]he court of primary probate jurisdiction is determined by residence.” Jacobs v. Willis’
Heirs, 147 Tenn. 539, 249 S.W. 815 (1922).

       In discussing the significance of one’s domicile to the question of jurisdiction, this
court has stated:

              One of the many relationships that are established by domicile
              is the location of the appropriate place to probate the will and
              administer the estate of a deceased person. Tenn. Code Ann. §
              32-2-101 provides subject matter jurisdiction to the probate
              court “of the county where the testator had the testator’s usual
              residence at the time of the testator's death.” Although the
              statute speaks of the residence of the deceased, this statute has
              been consistently construed as meaning the domicile of the
              deceased. Svoboda v. Svoboda, 61 Tenn. App. 444, 454 S.W.2d
              722, 727, (Tenn. Ct. App. 1969). The Tennessee Supreme Court
              interpreted Tenn. Code Ann. § 32-2-101 to require that a testator
              must have been domiciled in Tennessee before a Tennessee
              court would have jurisdiction for the original probate of the
              testator’s will. Svoboda, 454 S.W.2d at 727.

In re Estate of Price, No. M2002-00332-COA-R3-CV, 2002 WL 31890885 at *3 (Tenn. Ct.
App. M.S., filed Dec. 31, 2002).

        Focusing, then, on the question of Walls’ domicile, Pemberton does not dispute that
Walls was a legal resident of Alabama for several years – by her account, until he came to
Tennessee to live closer to her. The gist of her argument appears to be that Walls abandoned
his residency in Alabama when he left with the expressed intention of relocating permanently
to Tennessee, and his departure from Alabama, together with his relocation to the Tennessee
nursing home creates a genuine factual dispute “regarding Walls’ intention to establish
residency” in Tennessee.

        “Domicile” is defined as the place “where a person has his principal home and place
of enjoyment of his fortunes; which he does not expect to leave, except for a purpose; from
which when absent, he seems to himself a wayfarer; to which when he returns, he ceases to
travel.” Snodgrass v. Snodgrass, 357 S.W.2d 829, 831 (1961)(quoting White v. White, 3

                                             -6-
Head 404, 40 Tenn. 404, Tyborowski v. Tyborowski, 28 Tenn. App. 583, 192 S. W. (2d)
231). Tennessee courts have long recognized the distinction between one’s legal residence
or domicile and a residence, meaning a person’s place of abode. Denny v. Sumner County,
134 Tenn. 468, 184 S.W. 14, 16 (Tenn. 1915); In re: Clayton, 914 S.W.2d 84, 89 (Tenn. Ct.
App. 1995). “Legal residence” is synonymous with domicile. Bearman v. Camatsos, 215
Tenn. 231, 385 S.W.2d 91, 93 (1964). A person may have more than one residence but only
one domicile, or legal residence. Id.; Brown v. Brown, 150 Tenn. 89, 261 S.W. 959 (1924).
“He must have a domicile somewhere; he can have only one; therefore, “in order to lose one,
he must acquire another.” Denny, 184 S.W. at 16.

       The Supreme Court has observed that “[t]he question of domicile is often a difficult
one; . . . . The difficulty is intrinsic in determining, under the various combinations of
circumstances, what constitutes habitancy or domicile, which, for most purposes at least, are
the same. . . .” Id. at 17. In discussing the question in the context of determining a person’s
domicile for taxation purposes, the Denny Court stated:

              Although he might have left the commonwealth with the fixed
              purpose to abandon it as a residence, he did not leave it on his
              way to a place certain which he had determined upon as his
              future residence, and was proceeding to with due dispatch; and
              upon the general rule that, having had a domicile in this
              commonwealth, he remains an inhabitant for the purpose of
              taxation until he acquired a new domicile, the intention and fact
              had not concurred at the time when this tax was assessed.

              The mere intention to acquire a new domicile without the fact of
              an actual removal and residence avails nothing; neither does the
              fact of an actual removal without such intention. This intent is
              as essential as the fact of actual residence. A mere change in the
              place of abode, though more than temporary, is not sufficient,
              unless the intent concur.

              This intention, it is true, may be inferred from circumstances,
              and the residence may be of such a character and accompanied
              by such indices of a permanent home that the law will apply to
              the facts a result contrary to the actual intention of the party.
              Thus one cannot make a permanent, fixed commercial residence
              with all the surroundings of a permanent home in one place and
              a domicile in another by a mere mental act. But a residence for



                                              -7-
              mere pleasure or health is not regarded as of any great weight in
              determining the question of a change of domicile.

              In such case he does not lose his former domicile so long as his
              intention remains conditional, as, for example, where he may
              seek employment, intending to change his permanent home only
              if he finds it.

Id. (Internal citations omitted.) Further guidance on the question is found in the following
language:

              A domicile once acquired remains one’s domicile until another
              is established; and one’s domicile is not established by the mere
              act of abiding at a particular place for a specific purpose, with
              no present intention of making it a permanent home.

Bruce v. Bruce, 32 Tenn. Ct. App. 222, 226, 222 S.W.2d 228, 230 (Tenn. Ct. App. 1949).

       To establish a change from one’s domicile to another domicile of choice, three things
are essential: “(a) Actual residence in the other or new place; (b) an intention to abandon the
old domicile; and (c) an intention of acquiring a new one at the other place.” Denny, 184
S.W. at 16. “Although intent alone is not sufficient to establish domicile, intent plus some
type of action is sufficient.” Svoboda, 454 S.W.2d at 727; Tyborowski, 192 S.W.2d at 233.

        Svoboda involved an appeal from the denial of a petition to probate a will in
Tennessee upon the trial court’s finding that the testator, Mrs. Svoboda, was a resident of
Kansas, not Tennessee, at the time of her death. In affirming the holding, this Court
examined Mrs. Svoboda’s conduct and statement and concluded that she never carried out
her intention to transfer her domicile from Kansas to Tennessee. The facts showed that
although she had lived in Kansas for many years, Mrs. Svoboda took certain steps toward
making Tennessee her new home. After she and her husband separated, Mrs. Svoboda
continued to live in her home in Kansas, but often visited a daughter who lived in Memphis.
The landlord invited Mrs. Svoboda to live in the home where her daughter rented a room, and
at one point after a visit, she returned to Kansas “for the avowed purpose of selling her home
and coming back to Memphis to live permanently.” Id. at 725.

       Mrs. Svoboda in fact sold her home, but stored its contents and most of her clothing
and personal belongings in Kansas. Mrs. Svoboda became ill and endured a lengthy
hospitalization in Kansas. On her release, she again returned to live in the house where her
daughter lived in Memphis. She changed the mailing address for her social security checks

                                              -8-
to her Memphis address and her daughter paid for her additional living expenses. She
brought with her only clothing and personal items and a box containing important personal
records. At the same time, she left open her bank account in Kansas and never changed her
voter registration from that state. She joined a church in Memphis and was a member there
when she died. When Mrs. Svoboda returned to Kansas to visit her dying mother and to
attend a relative’s birthday there, she again became ill. Her condition worsened and she was
hospitalized in various Kansas hospitals. On her release, she lived in a room in the home of
her husband for a short time before she was again hospitalized and died. Her death
certificate reflected that she was a resident of Kansas. One hospital listed her address in
Kansas, the other at the home where she lived in Memphis. Id. at 725-26.

      On these facts, the Court agreed that Mrs. Svoboda’s domicile remained in Kansas
when she died. We quote extensively from the court’s analysis:

              In the case of Caldwell v. Shelton, 1948, 32 Tenn.App. 45, 221
              S.W.2d 815, this court held that words in a similar document
              executed under similar circumstances did not prove a change of
              domicile. In that case Miss Helen Shelton of Waco, Texas, had
              brought her mother to Jackson, Tennessee, for burial. Miss
              Shelton herself became seriously ill and died of a malignancy
              within less than two months after she came to Jackson,
              Tennessee, from Waco, Texas. She told associates on the day of
              the death of her mother that she did not intend to go back to
              Waco, Texas, but “* * * She had come to Tennessee to spend
              the rest of her life * * *.” At the time of her death Miss Shelton
              was on leave of absence from her employment in Waco, Texas,
              and during her illness wrote to her employer asking for an
              extension of her leave of absence. This court held that the most
              that could be said of the evidence was that the decedent’s
              intention was to live in Jackson, Tennessee, providing she could
              obtain employment there or that she intended to return to Waco
              and continue her work until she could obtain a pension. This
              court reversed the action of the Chancellor in holding that the
              domicile of the decedent was in Jackson, Tennessee, at the time
              of her death.

              From Caldwell v. Shelton we quote as follows:




                                             -9-
      In the case of Brown v. Hows, 163 Tenn. 178, 42
      S.W.2d 210, 212, opinion by Chief Justice Green,
      it is said:

      Indeed, we are of the opinion that a bare intent to
      make a particular place one’s residence is not
      sufficient to establish a domicile. There must be
      some appropriate action harmonizing with the
      intent.

      It is well settled that to effect a change of
      domicile there must be both the intention to do so
      and the actual taking of some steps to carry out
      that intention.

      Also in the case of Sparks v. Sparks, 114 Tenn.
      666, 669, 88 S.W. 173, 174, it is said:

      In determining whether or not a change of
      domicile has been made, it is proper to consider
      along with the statement of the party of his intent
      in the matter, his conduct and declarations, and all
      other facts that throw light upon the subject.

                           *    *     *

On the authority of Caldwell v. Shelton we hold that the
evidence in the present case does not preponderate against the
finding of the lower court that Mrs. Svoboda never took any
steps to carry out her intention to change her domicile from
Kansas to Tennessee.

The fact that Mrs. Svoboda had not sold but only stored her
furniture, household goods, china and much of her clothing and
had never made any effort to have it brought to Memphis is a
strong circumstance that Mrs. Svoboda never decided as a
finality that Memphis would be her home permanently even
though she had told friends that she intended to make Memphis
her home. The transfer of her domicile was not complete.



                               -10-
Svoboda, 454 S.W.2d at 726-27.

        In the summary judgment analysis, the starting point is the material upon which the
moving party relies to support its request for judgment “on the papers.” See McCarley v.
West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998). It is only after the movant
satisfies its burden that the obligation of the non-moving party to demonstrate a genuine issue
of material fact is triggered. Id. at 588-89.

        There is clearly a genuine issue of material fact in this case with respect to the issue
of whether the deceased intended to change his domicile from Alabama to Tennessee; but
that is only one of two factors that must be examined. It is clear from the cases that, in
addition to intent, there must be “the actual taking of some steps to carry out that intention.”
Brown, 42 S.W.2d at 212. The facts before us do not make out a genuine issue of material
fact on this second element. On the contrary, the facts relied upon by Brown in support of
her motion for summary judgment negate Pemberton’s assertion that “some steps to carry out
that intention,” see id, were shown in this record. While Pemberton was successful in
creating a genuine issue of material fact as to intent, the facts shown by her do not create a
genuine issue on the “some steps to carry out that intention” issue.

         We conclude that the domicile, or legal residence, of Walls was as a matter of law in
the state of Alabama at the time of his death. The fact of Walls’ presence in Tennessee at
his death is undisputed. In our view, however, his intent to establish a new legal residence,
i.e., a new domicile, in Tennessee, was never carried out. Stated differently, Walls checked
into a nursing facility in Tennessee, thereby establishing an actual residence in this state. But
once here, he took no steps in furtherance of his declared intention to abandon his domicile
in Alabama and establish a new one here.

       The following is clear: (1) the deceased had lived in Alabama since 2003; (2) before
coming to Tennessee in late January 2009, he lived in a house he owned in Decatur,
Alabama; (3) the deceased died some 18 days after he came to Tennessee; (4) when the
deceased came to Tennessee, he brought with him, according to Pemberton, only “his clothes
and household items that he could use in assisted living”; (5) the deceased, according to
Brown, “maintained ownership of his residence, accounts and assets” in Alabama; (6) he had
an Alabama driver’s license, albeit an expired one; and (7) the deceased executed two wills
in Alabama, both of which were prepared by an Alabama attorney and each of which stated
that the deceased was “of Morgan County, Alabama” – the last of these two wills being
executed on the day he left Alabama to come to Tennessee.

       Mindful that mere intention, without more, is not enough to change one’s domicile,
we think the evidence shows only that Walls changed his residence, or place of abode, to a

                                              -11-
nursing home in Tennessee to be closer to Pemberton and nothing more. In summary, taking
all of the evidence and reasonable inferences therefrom in the light most favorable to
Pemberton, as did the trial court, a reasonable person could only reach the conclusion that
Walls remained a legal resident of Alabama at his death. In other words, he had a new
residence in Tennessee but his domicile was in Alabama.

        It necessarily follows that the trial court was without jurisdiction of the probate case
instituted by Pemberton. On this basis, the trial court appropriately granted Brown summary
judgment.

                                              V.

        As an alternative ground for dismissal of the probate case, the trial court relied upon
the doctrine of forum non conveniens. “Generally speaking, forum non conveniens deals with
the discretionary power of the court to decline to exercise a possessed jurisdiction whenever,
because of varying factors, it appears that the controversy may be more suitably or
conveniently tried elsewhere.” Zurick v. Inman, 221 Tenn. 393, 396, 426 S.W.2d 767
(1968)(quoting Cotton v. Louisville & Nashville R.R. Co., 14 Ill.2d 144, 152 N.E.2d 385,
388 (1958)). By its own terms, however, application of the doctrine “of course, presupposes
the court has both personal and subject-matter jurisdiction.” Cornish v. Harrah’s Entm’t,
Inc., No. W2007-00782-COA-R3-CV, 2008 WL 1948030 at *3 (Tenn. Ct. App. M.S., filed
May 6, 2008). Having determined that subject-matter jurisdiction is lacking in the present
case, we must conclude that the doctrine is inapplicable. Accordingly, the trial court
erroneously relied on it in this case.

                                              VI.

        The judgment of the trial court is affirmed as to the defense of lack of subject matter
jurisdiction. This case is remanded to the trial court, pursuant to applicable law, for the
collection of costs assessed below. Costs on appeal are taxed to the appellant, Patricia
Pemberton.




                                                     _________________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




                                              -12-
