                                                                                                  09/27/2017
                    IN THE COURT OF APPEALS OF TENNESSEE
                                AT NASHVILLE
                                     September 6, 2017 Session

                         IN RE ESTATE OF JAMES KEITH OWEN

               Appeal from the General Sessions Court for Rutherford County
                               No. 1   Tolbert Gilley, Judge


                                  No. M2017-00656-COA-R3-CV


In this case challenging the trial court’s interpretation of the notice requirements of Tenn.
Code Ann. § 30-2-306(d), we find the notice issue moot because the trial court found that
the petitioner’s claim was without merit.

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

ANDY D. BENNETT, J., delivered the opinion of the Court, in which RICHARD H. DINKINS
and W. NEAL MCBRAYER, JJ., joined.

John Robert Toy, II, Murfreesboro, Tennessee, for the appellant, James Lee Owen.

Mark Allen Polk and Amy Broom Pollina, Murfreesboro, Tennessee, for the appellees,
Cristina Amanda Utti-Hodge and Estate of James Keith Owen.

                                   MEMORANDUM OPINION1

       James Keith Owen (“the decedent”) died on July 15, 2015. His will was probated
and his estate was closed on February 25, 2016. On July 14, 2016, the decedent’s father,
James Lee Owen (“the petitioner”), filed a petition to reopen the closed estate asserting
that he was a creditor of the estate and never received actual notice of the right to file


1
    Tennessee Court of Appeals Rule 10 states:

          This Court, with the concurrence of all judges participating in the case, may affirm,
          reverse or modify the actions of the trial court by memorandum opinion when a formal
          opinion would have no precedential value. When a case is decided by memorandum
          opinion it shall be designated “MEMORANDUM OPINION,” shall not be published, and
          shall not be cited or relied on for any reason in any unrelated case.
claims against the estate under Tenn. Code Ann. § 30-2-306(d).2 The petitioner filed a
verified claim against the estate in the amount of $155,000 for a cash loan designated “to
build spec houses.” The trial court reopened the estate to receive the petitioner’s claim,
and the executrix of the estate filed an exception to the petitioner’s claim asserting that
the claim was “not substantiated by sufficient documentation to show that the decedent
owed any money to him” and that it was time-barred.

       The trial court held a hearing on November 14, 2016 and heard testimony from
Cristy Owen, daughter of the petitioner and sister of the decedent, and from the
petitioner. The court made the following findings:

          1. The matter that is before the Court initially started out as a claim for a
             loan.
          2. There has been no evidence submitted to the Court that provides proof
             of a loan.
          3. Cristy Owen testified that she told her brother that he needed to pay
             money back to their father and, apparently, the decedent advised that he
             would not.
          4. There is no proof of a loan between the decedent and the claimant.
          5. The Claimant’s pleadings have evolved from being a claim for a loan to
             theories based on unjust enrichment, constructive trust, and resulting
             trust, and express trust.
          6. There is no evidence of a constructive trust because there is no evidence
             of fraud or constructive fraud.
          7. With regard to the existence of a resulting trust or an express trust, the
             only information that has been provided to the Court by the standalone
             documents, over the objection by counsel, is that money was removed
             from one account and money went into another account.
          8. The Court finds that the Whipple vs. McCue case and the Williams vs.
             Frazier case that were cited by Attorney for the Claimant are not
             controlling or applicable in this situation.




2
    Tennessee Code Annotated section 30-2-306(d) provides as follows:

          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.


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       9. Even if the Court was to determine that there was a trust whether
           resulting, express, constructive, or otherwise, all claims still must be
           timely filed.
       10. Claimant’s claims are based on equity. However, even in matters of
           equity, a claim must be filed timely.
       11. The only notice that the Executrix received regarding potential of a
           valid debt, which would trigger the one (1) year statute of limitations as
           opposed to the four (4) month statute, is that on November 13, 2015,
           Attorney Hank Griffin left a message for Attorney Pollina regarding
           said estate. Attorney Pollina and Attorney Griffin communicated by
           email thereafter regarding the alleged debt owed to the decedent’s
           father. Attorney Pollina advised that Mr. Owen would need to seek
           assistance from a Tennessee attorney regarding any matter he wished to
           file in Probate Court.
       12. James Lee Owen contacted Attorney Amy Pollina on November 12,
           2015, inquiring about the debt and whether the decedent [left] a Will.
           Mr. Owen advised that he learned of his son’s death through a Discover
           account. Mr. Owen advised that he and his son were estranged and he
           had a claim to file against his son’s estate.
       13. During the course of the conversations, neither Mr. Owen nor Attorney
           Griffin provided proof of the alleged contract or debt purportedly owed
           to James Lee Owen.
       14. The Court finds that there was no reasonable basis for the Estate to be
           aware of any potential valid legal debt that would trigger Tenn. Code
           Ann. § 30-2-307, the one (1) year statute in this situation that would
           require the Executrix to provide actual notice to the creditor in
           accordance with Tenn. Code Ann. § 30-2-306(d) when the alleged
           creditor in this situation had already reached out to Counsel for the
           Executrix.
       15. In this situation the notice to creditors being filed was sufficient for the
           alleged debt.
       16. James Lee Owen failed to file a claim within the prescribed four (4)
           months even though his attorney was notified of the situation.

(Emphasis added). Based upon these findings, the trial court ordered that the claim filed
by Mr. Owen be dismissed.

        On appeal, Mr. Owen argues that the trial court erred in interpreting Tenn. Code
Ann. § 30-2-306(d) to require a creditor to provide a personal representative with proof
of a contract or debt before the representative must mail a copy of the published notice to
the creditor. The estate asserts that the issue raised by Mr. Owen is moot because the
trial court found, after a hearing on the merits, that the petitioner failed to present any


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proof of a loan or debt owed by the decedent to the petitioner. The estate also argues that
the trial court correctly interpreted the statute as it applies to the facts of this case.

                                 STANDARD OF REVIEW

       We review the trial court’s findings of fact “de novo upon the record of the trial
court, accompanied by a presumption of the correctness of the finding, unless the
preponderance of the evidence is otherwise.” TENN. R. APP. P. 13(d). A trial court’s
conclusions of law are reviewed de novo with no presumption of correctness. Bowden v.
Ward, 27 S.W.3d 913, 916 (Tenn. 2000). The determination of whether a case is moot
presents a question of law. Alliance for Native Am. Indian Rights in Tenn., Inc. v. Nicely,
182 S.W.3d 333, 338-39 (Tenn. Ct. App. 2005).

                                        ANALYSIS

       The only issue presented for review by Mr. Owen is a question of law: whether
Tenn. Code Ann. § 30-2-306(d) requires a creditor to provide the personal representative
of an estate with proof of a contract or debt before the representative must mail a copy of
the published notice to the creditor. Mr. Owen does not contest any of the factual findings
made by the trial court.

      In its order, the trial court ruled that “[t]here is no proof of a loan between the
decedent and the claimant.” The trial court also rejected the equitable theories put forth
by Mr. Owen. Thus, the trial court found no basis for a claim against the estate by Mr.
Owen.

        Mr. Owen had a hearing on his claim against the estate, and it was denied. This
Court need not address the notice issue. We will not rule on an issue when that issue is
moot. An issue becomes moot when it “no longer serves as a means to provide some sort
of relief.” Williams v. Williams, No. M2013-01910-COA-R3-CV, 2015 WL 412985, at
*7 (Tenn. Ct. App. Jan. 30, 2015).

                                      CONCLUSION

       The judgment of the trial court is affirmed, and this matter is remanded with costs
of appeal assessed against the appellant, James Lee Owen.


                                                  ________________________________
                                                  ANDY D. BENNETT, JUDGE




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