                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                   May 13, 2013 Session

                       IN RE ESTATE OF JAMES E. MILLER

                   Appeal from the Probate Court for Monroe County
                        No. 2010-117     J. Reed Dixon, Judge




                   No. E2012-02215-COA-R3-CV Filed July 12, 2013


In this action, a creditor brought a claim against the decedent’s estate for the value of cattle
and equipment. With the personal representative for the estate filing an exception to the
claim, the creditor filed an amended claim, seeking to enforce an attached handwritten
contract. The trial court dismissed the amended claim as both untimely and asserting a new
and different cause of action. On appeal, the creditor raises two issues: whether the trial
court erred (1) by finding that the claimant was not entitled to actual notice of the probate
proceedings pursuant to Tennessee Code Annotated § 30-2-306(d) (2010) and (2) by
dismissing the amended claim pursuant to Tennessee Code Annotated § 30-2-307(e)(2)
(2010). Discerning no error, we affirm.

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

T HOMAS R. F RIERSON , II, J., delivered the opinion of the Court, in which C HARLES D.
S USANO, J R., P.J., and D. M ICHAEL S WINEY, J., joined.

Russell J. Blair, Athens, Tennessee, for the appellant, Andy Kenneth Miller, Jr.

Ashley Harrison Shudan, Loudon, Tennessee, for the appellee, Estate of James E. Miller.

                                          OPINION

                           I. Factual and Procedural Background

       The claim giving rise to this appeal originated with what the claimant, Andy Kenneth
Miller, Jr., alleges was his partnership with the Decedent, James E. Miller, in a business
marketing and selling cattle.1 Mr. Miller contends that he and the Decedent entered into a
valid handwritten contract on September 15, 2006, in which they agreed to be equal co-
owners of 376 head of cattle. He alleges, inter alia, that the contract provided the Decedent
was to pay him $49,460 as consideration for the Decedent’s retaining all profits from cattle
sales for four years. Mr. Miller claims the Decedent was then to pay him for his one-half
interest in all 376 head of cattle at either their fair market value or $1,000 a head, whichever
was greater.

        The Decedent owned and operated Jim Miller Excavating, Inc. He died intestate on
July 17, 2010. His wife, Vickie C. Miller, opened the estate by order of the Monroe County
Probate Court, which granted letters of administration on November 29, 2010. Ms. Miller,
as the Personal Representative for the estate (“Personal Representative”), first published the
notice to creditors in the local newspaper on December 9, 2010. See T.C.A. § 30-2-306.

       Mr. Miller, initially self-represented, filed a claim against the estate on April 8, 2011.
The claim was handwritten on a probate court form. It listed as “Items and Nature of Claim”:


                Cattle                   $188,000
                [Equipment]              $ 22,000

No documents or respective copies were attached to the claim. The Personal Representative
filed an exception to Mr. Miller’s claim, arguing, inter alia, that the claim did not arise from
a valid debt and that the statutory requirement of attaching a written instrument in support
of the claim had not been met. See T.C.A. § 30-2-307(b).

        On July 8, 2011, Mr. Miller, then represented by counsel, filed an amended claim,
entitled “Andy Kenneth Miller Jr.’s Amended Claim Pursuant to T.C.A. § 30-2-307(e)(2),
or alternatively, Andy Kenneth Miller Jr.’s Original Claim Pursuant to T.C.A. § 30-2-306(d)
and T.C.A. § 30-2-307(a)(1)(B).” The amended claim was for the same amount as the
original claim, with the total for cattle itemized at $1,000 per head and large machinery
described as an 853 Bobcat Skid Loader and a 977 CAT Front End Loader. Mr. Miller
alleged in the amended claim that he was a known or reasonably ascertainable creditor of the
Decedent and was never provided with actual notice according to law.




        1
         The Personal Representative states in her brief on appeal that Andy Kenneth Miller, Jr., and James
E. Miller were brothers, an assertion the claimant does not dispute in his brief.

                                                    2
      To his amended claim, Mr. Miller attached a copy of a handwritten agreement, dated
September 15, 2006, bearing signatures for “Jim Miller” and “Ken Miller.” The signatures
were not notarized. The agreement stated the following:

                       Cattle agreement between Jim & Ken Miller

       Jim and Ken Miller are Fifty Fifty owners of 376 three hundret & seventy six
       head of cattle.
               Jim Miller agrees To manage & market Calf Sales of Cattle For Four
       years. From the Fall of 2006 until Fall of 2010. Jim Miller agrees to pay Ken
       Miller $49,460 Fourty Nine Thousand Four hundred and Sixty Dollars, For his
       intrest in calf sales as of This date 9-15-06. In return Ken Miller agrees To let
       Jim Miller have all calf sales money untill the fall Sept-Oct-Nov. of 2010. at
       this time Jim Miller agrees to pay Ken Miller one Thousand $1,000 or Market
       Price, Per head For his 1/2 one half of 376 head of Cattle, whitch ever is
       Greater.

(Text duplicated as in original attachment to amended claim.) Also attached to the amended
claim were copies of receipts showing twelve payments from Jim Miller Excavating, Inc.,
to Mr. Miller, dated September 25, 2006, through March 14, 2007, and totaling $49,460. Mr.
Miller alleged that these payments demonstrated the Decedent’s acknowledgment of their
contract. A bill of sale evidencing Mr. Miller’s 1999 purchase of the Bobcat Skid Loader
for $14,500 was also attached.

        The Personal Representative filed a motion to dismiss Mr. Miller’s amended claim,
arguing that (1) it was untimely pursuant to Tennessee Code Annotated § 30-2-307(e)(2) and
should be declared void; (2) the attached handwritten agreement was not valid and did not
show a verified signature from the Decedent; (3) the Decedent had paid more than $49,460
to Mr. Miller for various transactions, but the receipts attached to the amended claim were
selected to equal this amount; and (4) the copies of receipts attached to the amended claim
did not prove the existence of a contract for cattle. The Personal Representative admitted not
having provided actual notice to Mr. Miller but denied that Mr. Miller was a known creditor.
She further argued that such notice was not necessary, pursuant to Tennessee Code
Annotated § 30-2-306(d), once Mr. Miller had filed a claim. Mr. Miller filed a brief in
response to the Personal Representative’s motion to dismiss in which he argued in support
of several positions. He specifically contended that the Personal Representative had an
affirmative duty to provide actual notice to him as a reasonably ascertainable creditor, that
he as a claimant was “simply seek[ing] the opportunity to supplement an already timely filed
claim,” and that denying his amendment would yield an unjust result.



                                              3
       Following a bench hearing, the trial court granted the Personal Representative’s
motion to dismiss Mr. Miller’s amended claim. In its Order, entered November 10, 2011,
the court stated in pertinent part:

       A.     Andy Kenneth Miller’s original claim was timely filed on April 8,
              2011.

       B.     An exception to the original claim was filed on May 6, 2011.

       C.     The claimant had until June 8, 2011 to amend his claim or raise
              additional issues; however, the claimant did not file his amended claim
              until July 8, 2011.

       D.     The claimant’s amended claim asserted a new and different cause of
              action based on contract and was not timely filed.

       E.     Personal notice to the claimant was not necessary pursuant to T ENN.
              C ODE A NN. § 30-2-306(d) because the claimant had already filed a
              claim.

       Mr. Miller filed a motion to alter, amend, or set aside the dismissal order, in which he
emphasized that the amended claim cured a “technical deficiency” in the original by
attaching documentation of the contract that underlay the initial claim. The trial court denied
Mr. Miller’s motion on September 14, 2012, concluding that its prior ruling “was made under
thoughtful deliberation and was proper.” Mr. Miller timely appealed.

                                     II. Issues Presented

       On appeal, Mr. Miller presents two issues, which we restate as follows:

       1.     Whether the trial court erred in finding that Mr. Miller was not entitled to
              actual notice of the probate proceedings pursuant to Tennessee Code
              Annotated § 30-2-306(d) (2010).

       2.     Whether the trial court erred by dismissing Mr. Miller’s amended claim
              pursuant to Tennessee Code Annotated § 30-2-307(e)(2) (2010).




                                              4
                                   III. Standard of Review

       We review a non-jury case tried in the probate court de novo upon the record, with a
presumption of correctness as to the findings of fact unless the preponderance of the
evidence is otherwise. See Tenn. R. App. P. 13(d); Bowden v. Ward, 27 S.W.3d 913, 916
(Tenn. 2000). We review questions of law, including those of statutory construction, de novo
with no presumption of correctness. Bowden, 27 S.W.3d at 916 (citing Myint v. Allstate Ins.
Co., 970 S.W.2d 920, 924 (Tenn. 1998)); see also In re Estate of Haskins, 224 S.W.3d 675,
678 (Tenn. Ct. App. 2006).

       Resolution of the issues presented in this appeal also involves principles of statutory
construction, which our Supreme Court has summarized as follows:

               Our “primary goal in interpreting statutes is ‘to ascertain and give effect
       to the intention and purpose of the legislature.’” Stewart v. State, 33 S.W.3d
       785, 791 (Tenn. 2000) (quoting Gleaves v. Checker Cab Transit Corp., 15
       S.W.3d 799, 802 (Tenn. 2000)). When the statutory language is unambiguous,
       we apply its plain and ordinary meaning. Planned Parenthood of Middle Tenn.
       v. Sundquist, 38 S.W.3d 1, 24 (Tenn. 2000). When the statutory language is
       ambiguous, we must look to other sources, such as legislative history, to
       determine the intent and purpose of the legislature. Id.

Conley v. State, 141 S.W.3d 591, 595 (Tenn. 2004); see also Burke v. Langdon, 190 S.W.3d
660, 662 (Tenn. Ct. App. 2005).

                                      IV. Actual Notice

        It is undisputed that the Personal Representative did not provide Mr. Miller with
actual notice of the probate proceedings. In his brief on appeal, Mr. Miller concedes that
Tennessee Code Annotated § 30-2-306(d) “in operation, excuses notice where a Claimant
(in this case, Appellant) had already filed a claim.” He contends, however, that this statutory
exception should not relieve the Personal Representative of an affirmative duty to send actual
notice to a known or reasonably ascertainable creditor of the estate. The Personal
Representative posits that the trial court properly found no necessity for actual notice because
Mr. Miller had already filed a claim. We agree with the Personal Representative.

       Subsections (a) through (c) of Tennessee Code Annotated § 30-2-306 describe the
duty of the probate court clerk to issue a notice to creditors via publication within thirty days




                                               5
after the court has issued letters testamentary or of administration.2 Subsection (d) provides
the following regarding the Personal Representative’s affirmative duty to provide actual
notice to creditors:

        (d) In addition, it shall be the duty of the personal representative to mail or
        deliver by other means a copy of the published or posted notice as described
        in subsection (b) to all creditors of the decedent of whom the personal
        representative has actual knowledge or who are reasonably ascertainable by the
        personal representative, at the creditors’ last known addresses. This notice
        shall not be required where a creditor has already filed a claim against the
        estate, has been paid or has issued a release of all claims against the estate.

(Emphasis added.) See also Bowden, 27 S.W.3d at 916 n.3 (citing Tulsa Prof’l Collection
Servs., Inc. v. Pope, 485 U.S. 478 (1988), for the origin of the statutory requirement for
actual notice to “reasonably ascertainable” creditors). This Court has held that a personal
representative can be held personally liable for breaching the duty to provide the notice to
creditors created by statute. Burke, 190 S.W.3d at 665.

        Pursuant to the version of Tennessee Code Annotated § 30-2-306(b) in effect in 2011
when Mr. Miller filed his original and amended claims, and therefore governing in this
action, creditors were required to file claims against the estate within either four months from
the date of the first publication or posting of notice or twelve months from the decedent’s
date of death, whichever was earlier. Otherwise, the claims would be “forever barred.” 3 Mr.
Miller timely filed his original claim on April 8, 2011, one day before the four-month


        2
        Subsection (e) provides that the court clerk’s duty to issue notice does not apply “if the letters
testamentary or of administration are issued more than one (1) year from the decedent’s date of death.”
        3
         The Tennessee General Assembly amended Tennessee Code Annotated § 30-2-306(b) in 2012 to
provide within the requirements for “Notice to Creditors”:
        (1)(A) Four (4) months from the date of the first publication (or posting, as the case may be)
        of this notice if the creditor received an actual copy of this notice to creditors at least sixty
        (60) days before the date that is four (4) months from the date of first publication (or
        posting); or
           (B) Sixty (60) days from the date the creditor received an actual copy of the notice to
        creditors if the creditor received the copy of the notice less than sixty (60) days prior to the
        date that is four (4) months from the date of first publication (or posting) as described in
        (1)(A); or

        (2) Twelve (12) months from the decedent’s date of death.

See 2012 Pub. Acts, ch. 886, § 4.

                                                    6
statutory period for filing closed, as notice to creditors was first published on December 9,
2010. Lack of actual notice from the Personal Representative did not, therefore, result in an
untimely filing of the initial claim.

        Mr. Miller argues instead that his case was prejudiced by lack of actual notice because
given more time to prepare, he could have filed an original claim complete with the
supporting documentation required by statute. See T.C.A. § 30-2-307(b) (“When any claim
is evidenced by a written instrument, the instrument or a photocopy of the instrument shall
be filed . . . .”). Pursuant to the version of Tennessee Code Annotated § 30-2-307(a)(1) in
effect when Mr. Miller filed his claim, receiving actual notice, provided that it was before
the end of the twelve-month period following the Decedent’s death, would have given Mr.
Miller sixty days from receipt of said actual notice to file a claim. This subsection provided:

        (a)(1) All claims against the estate arising from a debt of the decedent shall be
        barred unless filed within the period prescribed in the notice published or
        posted in accordance with § 30-2-306(b). However:
                (A) If a creditor receives actual notice less than sixty (60) days before
        the expiration of the period prescribed in § 30-2-306(b) or after the expiration
        of the period prescribed in § 30-2-306(b) and more than sixty (60) days before
        the date that is twelve (12) months from the decedent’s date of death, the
        creditor’s claim shall be barred unless filed within sixty (60) days from the
        date of receipt or actual notice; or
                (B) If a creditor receives actual notice less than sixty (60) days before
        the date that is twelve (12) months from the decedent’s date of death or
        receives no notice, the creditor’s claim shall be barred unless filed within
        twelve (12) months from the decedent’s date of death.

T.C.A. 30-2-307(a)(1) (2010).4

       Conversely, Mr. Miller also posits that because he received no actual notice, in the
hypothetical event that he had not filed the original claim within the four-month deadline
following notice to creditors, the filing of his amended claim on July 8, 2011, would have
been within the one-year period for the filing of claims when no notice has been given,
pursuant to Tennessee Code Annotated § 30-2-306(b). Ergo, he suggests that the trial court
could have treated the amended claim as a timely filed new claim. In summary, Mr. Miller


        4
          The Tennessee General Assembly amended Tennessee Code Annotated § 30-2-307(a)(1) in 2012
to delete subsections (a)(1)(A) and (a)(1)(B) and make reference only to the time requirements for filing after
receiving actual notice, which remain unchanged, as they are now stated in Tennessee Code Annotated § 30-
2-306(b)(1). See 2012 Pub. Acts, ch. 886, §§ 4-6.

                                                      7
contends that following the statutory exception found in Tennessee Code Annotated §30-2-
306(d) created an unjust result by punishing him for arriving at the courthouse a day before
the four-month deadline after notice to creditors was filed and by rewarding a personal
representative who was negligent in not sending actual notice.

        Mr. Miller cites no applicable authority to support his argument that the statutory
exception exempting actual notice to a creditor who has already filed a claim should not
apply in this case. He does reference Needham v. Moore for the proposition that the statutes
of the Tennessee Claims Act, initially enacted in 1939 and now codified and amended as
Tennessee Code Annotated § 30-2-306 et seq., are to be construed liberally. See Needham,
292 S.W.2d 720, 722 (Tenn. 1956) (“As has been said in a number of opinions the purpose
of this Act is to afford a very simple and expeditious remedy for the administration of estates,
and in doing so the Act is liberally construed.”). In Needham, our Supreme Court addressed
a conflict between interpretations regarding two sections of the Claims Act affecting how
parties were calculating a “month” to determine the deadline for filing an exception to a
claim. Id. at 723. We do not construe the holding in Needham as supporting waiver of the
statutory exception to the notice requirement based on the principle of liberal construction
alone.

       Proper notice to creditors provides, at a minimum, information regarding the
commencement of probate proceedings and the time allowed for filing a claim. See Estate
of Jenkins v. Guyton, 912 S.W.2d 134, 138 (Tenn. 1995). As the Personal Representative
notes, once a creditor has filed a claim, he or she no longer needs the information provided
by notice. We conclude that the language of Tennessee Code Annotated § 30-2-306(d)
expressly and unambiguously provides that receipt of actual notice of probate proceedings
from the personal representative is not required for a creditor who has timely filed a claim
against the estate. We further conclude that the trial court properly did not reach the question
of whether Mr. Miller was a reasonably ascertainable creditor of the estate because that
question is rendered moot by application of the aforementioned statutory exception to the
notice requirement. Mr. Miller is not entitled to relief on this issue.

                             V. Timeliness of Amended Claim

       In dismissing Mr. Miller’s amended claim as untimely, the trial court found that the
original claim was not amended within the statutory deadline and that the amended claim
actually introduced a new and different cause of action based on contract law. Mr. Miller
concedes that he filed the amended claim after the deadline but argues that extraordinary
circumstances dictated that he should have been granted an extension. He also asserts that
his amended claim simply added needed documentation to the initial claim and did not state
a new cause of action. The Personal Representative contends that no extraordinary

                                               8
circumstances existed to warrant an extension of the statutory deadline for filing an amended
claim. We agree with the Personal Representative.

      As previously noted, Mr. Miller filed his original claim on April 8, 2011. Tennessee
Code Annotated § 30-2-307(e)(1) provides:

       A creditor who has timely filed a claim against the estate shall file any
       amendment to its claim no later than thirty (30) days from the later of:

              (A) The date an exception to the claim is filed; or

              (B) The expiration of the exception period.

The Personal Representative filed an exception to Mr. Miller’s original claim on May 6,
2011; therefore, the thirty-day deadline for filing an amended claim under subsection
(e)(1)(A) was June 5, 2011. The exception period, however, did not expire until May 9,
2011, or four months plus thirty days after notice was first published on December 9, 2010.
See T.C.A. § 30-2-314(a) (2010) (providing that a personal representative may file an
exception to a claim against an estate “[u]ntil thirty (30) days after the expiration of four (4)
months from the date of the notice to creditors given as provided in § 30-2-306(b) . . . .”).
Mr. Miller therefore had through June 8, 2011, as thirty days past the end of the exception
period, by which to file his amended claim. See T.C.A. § 30-2-307(e)(B). He filed his
amended claim on July 8, 2011, one month beyond this deadline.

       Tennessee Code Annotated § 30-2-307(e)(2) provides:

       Unless the court with jurisdiction over the probate of the decedent’s estate
       grants an extension of time for amendment on the creditor’s showing of
       extraordinary circumstances, any amendment filed after the time prescribed
       shall be void.

Further, we shall not disturb the trial court’s denial of permission to amend the claim absent
an abuse of discretion. See Estate of Haskins, 224 S.W.3d at 678 (“The granting or denying
of a motion to amend is within the sound discretion of the trial court and will be reversed
only for an abuse of discretion.”) (quoting March v. Levine, 115 S.W.3d 892, 908 (Tenn. Ct.
App. 2003)).

       As our Supreme Court has noted in determining whether a claim against an estate was
timely filed:



                                               9
       Statutory enactments barring claims which are filed against an estate beyond
       a certain time period frequently are referred to as “nonclaim” statutes. The
       purpose served by such nonclaim statutes is the promotion of an “orderly,
       expeditious, and exact settlement of estates of decedents.”

Bowden, 27 S.W.3d at 918 (quoting Alamo Dev. Corp. v. Thomas, 212 S.W.2d 606, 607
(1948)). Historically, Tennessee courts have “permitted a party to amend a claim after the
filing deadline passed provided the amendment does not introduce a ‘new cause or a new
party.’” Estate of Haskins, 224 S.W.3d at 685 (quoting In re Estate of Dukes, No. M2004-
00340-COA-R3-CV, 2006 WL 468721 at *5 (Tenn. Ct. App. Feb. 27, 2006) (quoting
Cooper’s Estate v. Keathley, 177 S.W.2d 356, 359 (Tenn. 1943))). As noted by the Haskins
court, the enactment of Tennessee Code Annotated 30-2-307(e) in 2005, however,
“established time lines for amending a claim against an estate and imposed additional
restrictions to amending a claim after the deadline to file a claim against an estate has
passed.” 224 S.W.3d at 685.

        Mr. Miller relies on In re Estate of Green v. Carthage Gen. Hosp., Inc., 246 S.W.3d
582 (Tenn. Ct. App. 2007), in support of his position that because a claim is an informal
statement of a cause of action, permission to correct a deficiency may be freely given. This
Court noted in Estate of Green that a claim against an estate is not a formal pleading and is
not subject to the Tennessee Rules of Civil Procedure. See 246 S.W.3d at 585. In support
of its holding, this Court in Estate of Green observed that “merely filing a claim against an
estate is not the practice of law.” Id. at 586 (reversing the trial court’s ruling that a hospital’s
claim against an estate was void because the non-lawyer hospital official who filed the claim
had engaged in the unauthorized practice of law). Mr. Miller’s reliance on Estate of Green
is misplaced, as the issue of whether extraordinary circumstances existed to warrant an
extension of time for filing an amended claim was not addressed in that decision.

       Since the enactment of Tennessee Code Annotated § 30-2-307(e) in 2005, our
appellate courts have not addressed the specific question of what constitutes extraordinary
circumstances sufficient to warrant an exception to the statutory deadline for filing amended
claims. It is clear in this case, however, that the facts do not rise to the level of extraordinary
circumstances. Despite Mr. Miller’s contention that his cause was prejudiced by a lack of
time to amend his complaint, we note that after the Personal Representative filed her
exception to the original claim, Mr. Miller had thirty-three days, from May 6 through June
8, 2011, to respond to the alleged deficiencies and file his amended claim within the
deadline. We conclude that the trial court did not abuse its discretion by dismissing the
amended complaint. Because we have determined that the trial court did not err in
dismissing the amended complaint as untimely, the issue of whether the amended complaint
stated a new cause of action based in contract law is pretermitted as moot.

                                                10
                                     VI. Conclusion

       For the reasons stated above, the judgment of the trial court granting the Personal
Representative’s motion to dismiss Mr. Miller’s amended claim is affirmed. This case is
remanded to the trial court, pursuant to applicable law, for such further proceedings as may
be required, if any, and for collection of costs assessed below.




                                                 _________________________________
                                                 THOMAS R. FRIERSON, II, JUDGE




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