                                                                                         07/31/2019
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                        Assigned on Briefs November 1, 2018

   ROBERT D. PALMER, JR., ET AL. v. WAYNE ERIC COLVARD, ET AL.

               Appeal from the Chancery Court for Hamilton County
                  No. 17-0829    Pamela A. Fleenor, Chancellor


                            No. E2018-00454-COA-R3-CV


This appeal concerns the court’s dismissal of the plaintiffs’ claims with prejudice because
the plaintiffs lacked the capacity to prosecute their complaint as the alleged personal
representatives of their father’s estate. We affirm.

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

JOHN W. MCCLARTY, J., delivered the opinion of the Court, in which D. MICHAEL
SWINEY, C.J. and FRANK G. CLEMENT, JR., P.J., M.S., joined.

Robert Dean Palmer, Jr. and Suzanne Johnson, Ooltewah, Tennessee, pro se.

Samuel F. Hudson, Dunlap, Tennessee, for the appellee, Wayne Eric Colvard and Wayne
Eugene Colvard.

                                       OPINION

                                I.     BACKGROUND

       This case arises from the death of Robert D. Palmer, Sr. (“Decedent”). Prior to his
death, Decedent entered into a contract with Wayne Eric Colvard and Wayne Eugene
Colvard (collectively “Defendants”) for the sale of his tax preparation business.
Decedent’s children, Robert Dean Palmer, Jr. and Suzanne Johnson (collectively
“Plaintiffs”), filed suit against Defendants in their alleged capacities as personal
representatives of Decedent’s estate for breach of contract, fraud, and unjust enrichment
relating to the sale. The details of the complaint are not at issue in this appeal.
        Defendants responded with a motion to dismiss pursuant to Rule 12.02,
subsections (6) and (8), of the Tennessee Rules of Civil Procedure, which provides, in
part, as follows:

       Every defense, in law or fact, to a claim for relief in any pleading . . . shall
       be asserted in the responsive pleading thereto if one is required, except that
       the following defenses may at the option of the pleader be made by motion
       in writing: (1) lack of jurisdiction over the subject matter, (2) lack of
       jurisdiction over the person, (3) improper venue, (4) insufficiency of
       process, (5) insufficiency of service of process, (6) failure to state a claim
       upon which relief can be granted, (7) failure to join a party under Rule 19,
       and (8) specific negative averments made pursuant to Rule 9.01.

Rule 9.01 of the Rules of Civil Procedure provides, in part, as follows:

       When a party desires to raise an issue as to . . . the capacity of any party to
       sue or be sued or the authority of a party to sue or to be sued in a
       representative capacity, he or she shall do so by specific negative averment,
       which shall include such supporting particulars as are peculiarly within the
       pleader’s knowledge.

Defendants alleged that Plaintiffs had failed to state a claim upon which relief could be
granted and that Plaintiffs lacked the requisite capacity to file suit. Defendants claimed
that Plaintiffs had not obtained letters of administration or letters testamentary for the
administration of Decedent’s estate. Plaintiffs admitted that they were not issued letters
testamentary but claimed that such letters were not necessary because the accounts
receivable at issue were not in Decedent’s will.

        Plaintiffs then filed a motion for leave to amend the complaint, adding a second
cause of action in which they claimed that the debt at issue was an asset of Decedent’s
trust. They maintained that they were entitled to file suit as beneficiaries of the trust and
that they had the verbal authority from the trustee to file the complaint.

        The case proceeded to a hearing, after which the court dismissed the complaint by
order, thereby also implicitly denying the motion to amend. Plaintiffs filed a notice of
appeal and a statement of the evidence in lieu of filing a transcript from the hearing.
Defendants objected to the statement of the evidence, and the case was submitted back to
the trial court for ruling on the issue.

       Upon remand, the trial court issued a detailed order in which it recounted the
substance of the hearing and its findings in support of its order dismissing the case. The
                                             -2-
court explained that Plaintiffs lacked the capacity to bring the action when no letters
testamentary had been issued and that it found the motion to amend futile because the
requested amendment did not cure the deficiency of Plaintiffs’ lack of capacity. The
court reasoned that even if the debt claimed was an asset of the trust, it is the duty of the
trustee to file suit to collect the assets belonging to the trust. The court found
Defendants’ objections to Plaintiffs’ statement of the evidence well-taken because no
evidence was admitted or offered at the hearing on the motion to dismiss.

       This appeal followed in which Plaintiffs filed a brief raising numerous issues
without regard to the Tennessee Rules of Appellate Procedure. Defendants request
waiver of the issues presented as a result of the state of the brief. We agree with
Defendants that there are a multitude of problems with the brief and that Plaintiffs failed
to comply with the requirements. However, we will briefly address the issues raised
given Plaintiffs’ status as pro se litigants. See Young v. Barrow, 130 S.W.3d 59, 63
(Tenn. Ct. App. 2003) (“The courts give pro se litigants who are untrained in the law a
certain amount of leeway in drafting their pleadings and briefs.”).

                                             II.     ISSUES

        We have surmised that Plaintiffs essentially raise the following two cogent issues
for this court’s review: 1

        A.   Whether the court abused its discretion in denying the motion to
        amend the complaint.

        B.      Whether the court erred in dismissing the complaint with prejudice.

                                III.     STANDARD OF REVIEW

       The denial of a motion to amend the pleadings lies within the trial court’s sound
discretion and will not be reversed absent a showing of abuse of discretion. Pratcher v.
Methodist Healthcare Memphis Hosps., 407 S.W.3d 727, 741 (Tenn. 2013). However,
the grant of a motion to dismiss is subject to a de novo review with no presumption of
correctness because we are reviewing the trial court’s legal conclusion. Blackburn v.
Blackburn, 270 S.W.3d 42, 47 (Tenn. 2008); Union Carbide Corp. v. Huddleston, 854
S.W.2d 87, 91 (Tenn. 1993).


1
 Plaintiffs also allege that the court lacked personal and subject matter jurisdiction. This issue is without
merit when Plaintiffs submitted themselves to the jurisdiction of the court by filing the complaint.
Further, the chancery court has “exclusive jurisdiction over the probate of wills and the administration of
estates of every nature . . . and all matters relating thereto.” Tenn. Code Ann. § 16-16-201(a)
                                                        -3-
                                 IV.     DISCUSSION

                                         A. & B.

        Rule 15.01 of the Tennessee Rules of Civil Procedure provides, in pertinent part,
as follows:

      A party may amend the party’s pleadings once as a matter of course at any
      time before a responsive pleading is served or, if the pleading is one to
      which no responsive pleading is permitted and the action has not been set
      for trial, the party may so amend it at any time within fifteen (15) days after
      it is served. Otherwise a party may amend the party’s pleadings only by
      written consent of the adverse party or by leave of court; and leave shall be
      freely given when justice so requires.

(Emphasis added.). Plaintiffs in this case were required to request written consent or
leave of court to amend the complaint because a responsive pleading had been filed.

        Numerous factors guide a trial court’s discretionary decision whether to allow a
late filed amendment, including undue delay, bad faith by the moving party, repeated
failure to cure deficiencies by previous amendments, and futility of the amendment.
Pratcher, 407 S.W.3d at 741 (citing Merriman v. Smith, 599 S.W.2d 548, 559 (Tenn. Ct.
App. 1979)). Here, the court denied the motion due to the futility of the amendment
because the court found that the amendment did not cure Plaintiffs’ lack of capacity to
file suit. Accordingly, we must address the capacity issue before ruling upon the court’s
denial of the motion to amend.

      Defendants filed a Rule 12.02 motion to dismiss based upon Plaintiffs’ failure to
obtain letters testamentary prior to filing suit as the personal representatives of
Decedent’s estate. Tennessee Code Annotated section 30-1-101 provides as follows:

      No person shall presume to enter upon the administration of any deceased
      person’s estate until the person has obtained letters of administration or
      letters testamentary.

Plaintiffs admitted that they had not obtained the requisite letters of administration or
letters testamentary. Instead, they requested leave to amend the complaint to add a
second cause of action in which they claimed that the debt at issue was an asset of
Decedent’s trust. They maintained that they were entitled to file suit as beneficiaries of
the trust and that they had the verbal authority from the trustee to file the complaint.
                                           -4-
Pursuant to Tennessee Code Annotated section 35-15-816(b)(24), only the trustee may
“[p]rosecute or defend an action, claim, or judicial proceeding in any jurisdiction to
protect trust property and the trustee in the performance of the trustee’s duties” unless the
terms of the trust provide otherwise. Therefore, Plaintiffs still lacked the capacity to file
suit even if the purported amendment to the complaint had been granted. With these
considerations in mind, we affirm the court’s implicit denial of the motion to amend and
the dismissal of the complaint with prejudice.2

                                        V.      CONCLUSION

      We affirm the decision of the trial court and remand for such further proceedings
as may be necessary. Costs of the appeal are taxed equally to the appellants, Robert Dean
Palmer, Jr. and Suzanne Johnson.


                                                        _________________________________
                                                        JOHN W. McCLARTY, JUDGE




2
  Plaintiffs also take issue with the court’s rejection of their statement of the evidence. This issue is
rendered moot as a result of our decision affirming the court’s dismissal of the complaint.
                                                    -5-
