                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                            Assigned on Briefs February 22, 2002

    IN RE: ESTATE OF THERESA JOAN CUNNINGHAM, DECEASED

                      Appeal from the Probate Court for Franklin County
                                   Floyd Don Davis, Judge


                     No. M2001-01965-COA-R3-CV - Filed August 7, 2002


The plaintiff filed a claim against the estate of the deceased more than eighteen months after the first
publication of notice to creditors and twenty months after her death. The trial court granted him a
judgment against the estate for the full amount of his claim. We reverse.

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

BEN H. CANTRELL, P.J., M.S., delivered the opinion of the court, in which WILLIAM C. KOCH , JR.
and WILLIAM B. CAIN , JJ., joined.

Guy R. Dotson, Sr. and Gregory M. Reed, Murfreesboro, Tennessee, for the appellant, David Pitts.


                                              OPINION

                              I. THE ESTATE OF JEAN HELEN WEST

       Theresa Jean Cunningham died in Franklin County, Tennessee, on March 26, 1999.
Although this case involves the disposition of her estate, the claim involved arose from her role in
another estate, the disposition of which is discussed in our opinion in the case of David Pitts v. Floyd
R. Blackwell, Sr., No. M2000-01733-COA-R3-CV (Tenn. Ct. App. Dec. 28, 2001).

        During the last eight months of her life, Ms. Cunningham acted as co-conservator for Ms.
Jean Helen West, an Alzheimer’s patient. Her co-conservator was Floyd R. Blackwell, the owner
and operator of the Johnson-Blackwell Funeral Home. After Ms. West’s death, Mr. Blackwell’s
funeral home arranged her funeral. The cost, $26,367.75, was paid from the estate of Ms. West, and
from the proceeds of a burial policy she had owned. Ms. Cunningham and Mr. Blackwell were both
compensated $1,200 for their services as co-conservators.
        Ms. Cunningham’s death occurred shortly after the first accounting of Ms. West’s estate was
filed. David Pitts objected to the amended and final accounting as an interested party. He contended
that Mr. Blackwell had breached his fiduciary duty to Ms. West by transferring her burial insurance
policy from another funeral home to his own, and by providing funeral and burial services to her
while acting as co-conservator. He also questioned whether the funeral and burial expenses were
reasonable and proper. See Tenn. Code Ann. § 34-11-113(e).

       Although the probate court ordered Mr. Blackwell to return the proceeds of the burial policy
($7,731.93) to Ms. West’s estate, it approved the accounting in all other respects. This court
reversed the trial court, finding that Mr. Blackwell was not entitled to earn a profit from the estate
of Ms. West,1 and that he had breached his fiduciary duty. We remanded the case “for a
determination of the reasonable and necessary funeral expenses commensurate with an estate the size
of Ms. West’s.”

                          II. THE ESTATE OF THERESA JEAN CUNNINGHAM

       Ms. Cunningham’s will named her brother David Pitts as executor of her estate. The will
was submitted to probate, and on April 1, 1999, the court appointed Mr. Pitts executor. On April
12, 1999, the first notice to creditors was published. No claims were filed against the estate within
four months of that date, and no claims were filed within one year of Ms. Cunningham’s death. See
Tenn. Code Ann. § 30-2-307.

       On November 27, 2000, Floyd R. Blackwell, d/b/a Johnson/Blackwell Funeral Home, filed
a claim against the estate of Theresa Joan Cunningham, for payment of $7,731.93 for funeral
services provided to the estate of Ms. West. The claim form was not accompanied by any
documentation, such as a contract, bill or judgment, and did not state why Ms. Cunningham’s estate
might owe this sum to Ms. West’s estate. Mr. Pitts filed a timely exception to the claim.

         A hearing on the claim was set for January 30, 2001. Mr. Blackwell appeared on that date
without his attorney. He alleged that Ms. Cunningham had signed the funeral bill for Ms. West, that
she had agreed to be responsible for the bill, and that she had received the $7,000 as the beneficiary
of the burial policy. The attorney for Ms. Cunningham’s estate stated that the $7,000 had been
returned to Ms. West’s estate. The probate judge observed that Ms. Cunningham was the primary
beneficiary of Ms. West’s estate, but noted that such a circumstance didn’t make the Cunningham
estate liable for the West debts. The judge also observed that the Court of Appeals had not yet issued
its opinion in the case involving Ms. West’s estate, and agreed with the parties that our resolution
of that case might render Mr. Blackwell’s claim moot.

       The court granted a continuance to Mr. Blackwell, in order for him to be represented by
counsel at the hearing. The court’s Order also directed both parties to brief the questions of whether


        1
           The proof showed that Ms. West’s funeral was the most expensive one ever performed by Mr. Blackwell, and
indicated that he earned a pro fit of abo ut $12,00 0 on the purchase and sale of the vault and casket alone.

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the claim filed by Mr. Blackwell was a proper claim against Ms. Cunningham’s estate, and if so,
whether the claim was timely filed. Apparently, no other hearing was conducted, but the parties
submitted their briefs, and the probate court issued its ruling on June 18, 2001. The court’s order
contained no findings of fact, but stated that Mr. Blackwell’s petition was well-taken, and awarded
him a judgment in the amount of $7,731.93 against the estate of Ms. Cunningham. This appeal
followed.

                                      III. PROOF ON APPEAL

       The only appellate brief filed in this case was that of Mr. Pitts. Our decision must therefore
be based solely on the record and on the appellant’s brief. See Tenn. R. App. P. 29(c). The record
does not include the briefs that the parties submitted to the probate court, nor does it contain any
evidence of Mr. Blackwell’s claim other than his late-filed claim form.

        Tenn. Code Ann. § 30-2-307(b) requires claimants against decedents’ estates to file verified
proof of their claims at the time of filing such claims. As we stated above, Mr. Blackwell included
no such proof when his claim was filed, and he did not offer any documentation at the one hearing
of this case. There is thus absolutely no evidence in the record before us that Ms. Cunningham’s
estate is indebted in any amount to the Johnson/Blackwell funeral home.

        We are aware that the amount of Mr. Blackwell’s purported claim is identical to the amount
of burial insurance that the probate court ordered be restored to the estate of Helen West, but the link
between that insurance and Ms. Cunningham’s estate is just not evident from the record. If Mr.
Blackwell somehow managed to point to relevant evidence in his trial brief, we do not have the
benefit of that evidence.

       Further, even if Mr. Blackwell had established the validity of his claim, it is not at all clear
how he could have overcome the statutory time limits placed upon claimants or creditors against
decedents’ estates. Tenn. Code Ann. § 30-2-307(a) requires that claims be filed within four months
from the date of notice to creditors. Further, Tenn. Code Ann. § 30-2-310(a) reads,

        All claims and demands not filed with the probate court clerk, as required by the
        provisions of §§ 30-2-306 -- 30-2-309, or, if later, in which suit shall not have been
        brought or revived before the end of twelve (12) months from the date of death of the
        decedent, shall be forever barred.

       An important reason for such strict time limits is to promote the timely settlement of
decedents’ estates. Mr. Blackwell did not even file his claim until twenty months after Ms.
Cunningham’s death, yet the trial court decided that he was entitled to judgment. Although we
cannot explain the trial court’s puzzling decision, it is our duty to reverse it.




                                                  -3-
                                                IV.

       The order of the trial court is reversed. Remand this cause to the Probate Court of Franklin
County for further proceedings consistent with this opinion. Tax the costs on appeal to the appellee,
Floyd R. Blackwell.




                                              _________________________________________
                                              BEN H. CANTRELL, PRESIDING JUDGE, M.S.




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