                    IN THE COURT OF APPEALS OF TENNESSEE
                                 AT JACKSON
                                     February 25, 2015 Session

             IN RE CONSERVATORSHIP OF KAREN KLYCE SMITH

                       Appeal from the Probate Court for Shelby County
                           No. B16097    Karen D. Webster, Judge


                    No. W2014-01044-COA-R3-CV – Filed March 19, 2015


The substantive issue in this case is whether the decedent was a domiciliary of Tennessee
or Texas at the time of her death. Because Appellant was not an original party and did
not file a motion to intervene in this case, we dismiss this appeal for lack of standing and
remand the case for further proceedings as are necessary and consistent with this
Opinion.

           Tenn. R. App P. 3; Appeal of Right: Appeal Dismissed and Remanded

ARNOLD B GOLDIN, J., delivered the opinion of the Court, in which J. STEVEN
STAFFORD, P.J., W.S. and BRANDON O. GIBSON, J., joined.

Edward T. Autry, Memphis, Tennessee, for the appellant, Virginia Klyce Minervini.

Irma Merrill Stratton, Memphis, Tennessee, for the appellees, Walter B. Klyce, Jr. and
Esther Klyce Pearson.

                                   MEMORANDUM OPINION1

      This is a dispute over the assets of the estate of Karen Klyce Smith (“Ms. Smith”),
who was the ward of a conservatorship established by the Probate Court of Shelby
County, Tennessee, in 1990. That conservatorship remained open until January 2014. In
2004, Ms. Smith moved to a treatment facility in Texas. She moved back to Memphis for

1
    Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

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OPINION,” shall not be published, and shall not be cited or relied on for any reason in any unrelated case.
treatment at Baptist Memorial Hospital in 2011, and she later died in August 2011 at a
nursing and rehabilitation center in Memphis, Tennessee. Appellees Esther Klyce
Pearson (“Ms. Pearson”), Ms. Smith’s mother, and Walter B. Klyce, Jr., (“Mr. Klyce”),
Ms. Smith’s brother and conservator2 contend that Ms. Smith was a domiciliary of
Tennessee at the time of her death and that Tennessee intestate succession laws
accordingly govern the disposition of her assets. Appellant Virginia Klyce Minervini
(“Ms. Minervini”), Ms. Smith’s sister, asserts that Ms. Smith was a domiciliary of Texas
at the time of her death and that Texas intestate succession laws accordingly govern the
disposition of Ms. Smith’s assets.3

       Following Ms. Smith’s death, in November 2011 Mr. Klyce filed a petition in the
Shelby County Probate Court to be appointed administrator of Ms. Smith’s estate. In
his petition, Mr. Klyce stated that Ms. Smith died intestate, was not married, and that Ms.
Pearson was the recipient of Ms. Smith’s property under the Tennessee intestate
succession statutes.4 Ms. Pearson filed a declination to serve as administrator and
requested that Mr. Klyce be appointed.

        In March 2013, the trial court approved the conservatorship accounting filed by
Mr. Klyce. In its order, the trial court noted that Mr. Klyce had filed pleadings seeking to
open an estate in Texas but that no administrator had been appointed in Texas.
However, the trial court determined that Ms. Smith was a resident of Tennessee at the
time of her death and was, therefore, domiciled in Tennessee, and ordered Mr. Klyce to
transfer the conservatorship assets to the pending estate in Tennessee. The court found
that the Conservatorship assets are assets of a Tennessee decedent and so are assets of the
Tennessee probate estate.

        Ms. Minervini filed a notice of appeal to this Court. In September 2013, after
reviewing the record transmitted from the trial court, we directed Ms. Minervini to
submit a statement addressing the basis of her standing to appeal the trial court’s March
2013 order. We also directed Mr. Klyce to submit a response to Ms. Minervini’s
statement. We eventually dismissed the appeal for lack of a final judgment because the
trial court had not yet considered a final accounting, released the conservator, closed the
conservatorship, or made its order final pursuant to Tennessee Rule of Civil Procedure
54.02.
        In our order of November 19, 2013, however, we stated


2
 The Probate Court of Shelby County appointed Mr. Klyce conservator of Ms. Smith’s person and
property in September 2004. He remained Ms. Smith’s conservator until her death in 2011.
3
 Under Texas intestate succession laws, Ms. Minervini apparently would inherit a portion of Ms. Smith’s
estate.
4
    It is undisputed that Ms. Smith had no children.
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       Appellant submits that she has standing in this appeal[] because the trial court’s
       order adversely affected her property rights by denying her “even the opportunity
       to argue the issue of domicile.” Moreover, Appellant urges the Court to utilize the
       “more lenient” standard of permitting close relatives to challenge conservatorship
       proceedings. In this matter, however, Appellant was not a party to the trial court
       proceedings and had not filed any pleadings with the trial court. Thus, there was
       simply no basis upon which she could properly appeal the trial court’s order of
       March 5, 2013.

        Mr. Klyce filed a final accounting on December 9, 2013. The clerk filed his report
on December 17, 2013, and took no exceptions to the accounting. On January 27, 2014,
the trial court entered an order confirming the final accounting, relieving Mr. Klyce of
any further duties as conservator, and closing the conservatorship. Ms. Minervini filed a
notice of appeal on February 24, 2014.

       In her brief, Ms. Minervini asserts that the trial court erred in its determination that
Ms. Smith was a domiciliary of Tennessee at the time of her death. Mr. Klyce and Ms.
Pearson, on the other hand, deny the allegation of error. They also assert that Ms.
Minervini does not have standing to bring this appeal and that she is attempting to
challenge the trial court’s determination of Ms. Smith’s domicile for the first time on
appeal.

       Upon review of the record, we repeat our November 2013 observation that Ms.
Minervini was not a party to the proceedings in the probate court. We find no motion to
intervene filed by Ms. Minervini, nor does she reference one in her brief. Further, in her
reply brief, Ms. Minervini does not dispute that she did not move to intervene in the trial
court proceedings. Rather, she asserts that, under Tennessee Code Annotated § 34-1-
101(3), she had standing to participate in the conservatorship proceedings. Assuming,
without so holding, that Ms. Minervini had standing to participate in the proceedings in
the probate court, she simply failed to properly intervene in the matter. Regardless of
whether she may have had standing to intervene in the trial court, because she failed to do
so, she does not have standing to maintain this appeal.
       In her reply brief, Ms. Minervini asserts:
       There is no procedural rule or case law to support Petitioners’ argument that Sister
       “is not entitled to relief on appeal” because she did not file a motion to intervene, a
       motion for a hearing, or a motion for relief sought pursuant to Tennessee Rules of
       Civil Procedure 59 and 60. These are but options the Tennessee legislature
       adopted and made available to litigants. How a party desires to handle their case
       is left to their discretion. There was no evidentiary proceeding to allege the trial
       court’s error in its March 5 Order; that is precisely the objective of this appeal.
       The fact that [Ms. Minervini] could have filed a motion, as suggested by
       Petitioners, does not now preclude from her the opportunity to appeal the issue to


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       this Court. Whether the form of redress sought by [Ms. Minervini] is “best” is not
       for Petitioners to speculate.

Ms. Minervini cites no case law to support the proposition that a person who is not made
a party to an action in the trial court has standing to appeal the trial court’s judgment to
this Court, however, and we find none. On the contrary, it is well-settled that a person
who is not a party to an action in the trial court does not have the authority or standing to
file a notice of appeal in that action. E.g., Dry v. Steele, No. E2013–00291–COA–R3–
CV, 2014 WL 295777, at *6 (Tenn. Ct. App. Jan. 28, 2014); Reynolds v. Tognetti, No.
W2010–00320–COA–R3–CV, 2011 WL 761525, at *7 (Tenn. Ct. App. Mar. 4, 2011).

                                          Holding

      In light of the foregoing, the issues raised on appeal are pretermitted, and this
appeal is dismissed for lack of standing. Costs on appeal are taxed to Virginia Klyce
Minervini, and her surety, for which execution may issue if necessary. This matter is
remanded to the trial court for the collection of costs and further proceedings as may be
necessary and as are consistent with this opinion.


                                                  _________________________________
                                                  ARNOLD B. GOLDIN, JUDGE




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