                                                                                         08/29/2018
               IN THE COURT OF APPEALS OF TENNESSEE
                          AT KNOXVILLE
                           Assigned on Briefs May 1, 2018

                IN RE ESTATE OF MICHAEL DENVER SHELL

               Appeal from the Chancery Court for Anderson County
                  No. 17PB82    M. Nichole Cantrell, Chancellor



                            No. E2017-02146-COA-R3-CV



In this probate action, the intestate decedent owned real property at the time of his death
that was titled solely in his name. The decedent’s spouse subsequently died within 120
hours of the decedent’s death. The trial court ruled that, pursuant to Tennessee Code
Annotated § 31-3-120 (2015), the spouse’s heirs possessed no claim to or interest in the
real property at issue. The spouse’s heirs have appealed. Discerning no reversible error,
we affirm the trial court’s ruling. We decline to award attorney’s fees to the decedent’s
estate as damages, determining that this appeal is not frivolous.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which ANDY D.
BENNETT, J., and J. STEVEN STAFFORD, P.J., W.S., joined.

Walt Burnett, Knoxville, Tennessee, Pro Se.

Kipp Burnett, Knoxville, Tennessee, Pro Se.

Ann Mostoller, Oak Ridge, Tennessee, for the appellee, Estate of Michael Denver Shell.

                                       OPINION

                         I. Factual and Procedural Background

        This matter originated with the filing of a petition on April 7, 2017, in the
Anderson County Chancery Court, Probate Division (“trial court”), seeking probate of an
intestate estate. The petition alleged that Michael Denver Shell (“Decedent”) had died
intestate on February 7, 2017. The petition further alleged that Decedent’s widow,
Noreene Burnett Shell, had subsequently passed away within 120 hours of Decedent’s
death, such that his only surviving heirs were his brother, Richard W. Shell, and his
sister, E. Lander Medlin.1 Ms. Medlin filed the petition for probate, seeking appointment
as personal representative of Decedent’s estate (“the Estate”). Ms. Medlin stated in her
petition that Decedent owned both real and personal property at the time of his death.
The trial court entered an order for probate of the Estate on April 7, 2017.

        On May 26, 2017, Ms. Medlin filed a petition on behalf of the Estate, requesting
the trial court’s permission to sell certain tracts of real property that had belonged to
Decedent at the time of his death. Ms. Medlin stated that Ms. Shell’s brothers, Walt and
Kipp Burnett (“the Burnetts”), were claiming ownership of the property and had “taken
steps to secure the property.” Ms. Medlin asserted that pursuant to Tennessee Code
Annotated § 31-3-120, Ms. Shell’s heirs had no claim to the property owned solely by
Decedent at the time of his death. The Burnetts were named as respondents in the
petition. Ms. Medlin subsequently filed an amended petition on June 23, 2017, seeking
personal service upon the Burnetts.

       The Burnetts filed a response to the amended petition, admitting that Ms. Shell
had died within 120 hours of Decedent’s death. The Burnetts, however, relied on our
Supreme Court’s ruling in Heirs of Ellis v. Estate of Ellis, 71 S.W.3d 705, 712 (Tenn.
2002), in support of their assertion that because Ms. Shell had survived Decedent, his
property should pass to her heirs via intestate succession.2

       On September 25, 2017, the trial court conducted a hearing regarding the Estate’s
petition. The court subsequently entered a written order on October 4, 2017, finding that
the real property had been titled solely in Decedent’s name at the time of his death and
that Ms. Shell had not survived Decedent by more than 120 hours. The court thus
determined that Ms. Shell’s estate had no claim to or interest in the real property,
pursuant to Tennessee Code Annotated § 31-3-120. The court further ruled that the
property could be sold by Ms. Medlin free from any claim by the Burnetts. The Burnetts,
proceeding self-represented, timely appealed.




1
    Decedent and Ms. Shell apparently had no children.
2
    The Burnetts were represented by counsel during the trial court proceedings.

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                                   II. Issues Presented

       The Burnetts present one issue for our review, which we have restated slightly:

       1.     Whether the trial court erred in determining that Ms. Shell’s estate
              had no interest in the real property at issue.

The Estate presents the following additional issue:

       2.     Whether this appeal is frivolous such that the Estate should be
              awarded its attorney’s fees incurred on appeal.

                                 III. Standard of Review

       The facts in this matter are undisputed. The issues presented on appeal involve the
proper interpretation of certain state statutes, which are purely questions of law that this
Court reviews de novo with no presumption of correctness. See Pickard v. Tenn. Water
Quality Control Bd., 424 S.W.3d 511, 518 (Tenn. 2013).

       Regarding pro se litigants, this Court has explained:

              Parties who decide to represent themselves are entitled to fair and
       equal treatment by the courts. The courts should take into account that
       many pro se litigants have no legal training and little familiarity with the
       judicial system. However, the courts must also be mindful of the boundary
       between fairness to a pro se litigant and unfairness to the pro se litigant’s
       adversary. Thus, the courts must not excuse pro se litigants from
       complying with the same substantive and procedural rules that represented
       parties are expected to observe.

              The courts give pro se litigants who are untrained in the law a certain
       amount of leeway in drafting their pleadings and briefs. Accordingly, we
       measure the papers prepared by pro se litigants using standards that are less
       stringent than those applied to papers prepared by lawyers.

               Pro se litigants should not be permitted to shift the burden of the
       litigation to the courts or to their adversaries. They are, however, entitled
       to at least the same liberality of construction of their pleadings that Tenn.
       R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the
       courts cannot create claims or defenses for pro se litigants where none exist,


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      they should give effect to the substance, rather than the form or
      terminology, of a pro se litigant’s papers.

Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (internal citations
omitted).

              IV. Applicability of Tennessee Code Annotated § 31-3-120

       The undisputed proof demonstrated that Decedent died intestate on February 7,
2017. The Burnetts acknowledge that Ms. Shell, Decedent’s spouse, passed away less
than 120 hours following Decedent’s death. The proof also demonstrated that the real
property at issue was titled solely to Decedent at the time of his death. The trial court
thus determined that Ms. Shell’s estate had no claim to or interest in the real property
based on Tennessee Code Annotated § 31-3-120(a).

      Tennessee Code Annotated § 31-3-120, which is part of Tennessee’s Uniform
Simultaneous Death Act, provides:

      (a) An individual who fails to survive the decedent by one hundred twenty
      (120) hours is deemed to have predeceased the decedent for purposes of the
      homestead allowance, year’s support allowance, exempt property, elective
      share and intestate succession, and the decedent’s heirs are determined
      accordingly.

      (b) A devisee who fails to survive the testator by one hundred twenty (120)
      hours is deemed to have predeceased the testator, unless the will of the
      decedent contains language dealing explicitly with simultaneous deaths or
      deaths in a common disaster or requiring that the devisee survive by a
      stated period of time in order to take under the will.

      (c) If it is not established by clear and convincing evidence that an
      individual who would otherwise be an heir or devisee survived the decedent
      by one hundred twenty (120) hours, it is deemed that such individual failed
      to survive for the required period. This section is not to be applied if its
      application would result in property of any nature escheating to the state.

Pursuant to a plain reading of Tennessee Code Annotated § 31-3-120(a), Ms. Shell would
be deemed to have predeceased Decedent because she failed to survive him by 120 hours.
As such, the trial court properly determined that her estate had no interest in the real
property that was titled to Decedent at the time of his death.


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        The Burnetts rely upon our Supreme Court’s opinion in Heirs of Ellis v. Estate of
Ellis, 71 S.W.3d 705, 712 (Tenn. 2002), in support of their argument that because Ms.
Shell did survive Decedent, even though her death occurred within 120 hours of his, his
property should pass to her heirs. In Heirs of Ellis, when the wife passed away three days
after her husband, her heirs subsequently sought to probate her will. Id. at 708. The
husband’s heirs filed a motion to intervene, claiming that Tennessee Code Annotated §
31-3-104 of Tennessee’s Uniform Simultaneous Death Act entitled them to a one-half
share of the decedents’ property held as tenants by the entirety.3 Id. The husband’s heirs
argued that because the wife did not survive the husband by 120 hours, pursuant to
Tennessee Code Annotated § 31-3-120, the spouses would be deemed to have died
simultaneously for property distribution purposes. Id. at 709. The trial court rejected the
argument advanced by the husband’s heirs and denied the motion to intervene; this Court
affirmed that ruling. Id.

       Our Supreme Court in Heirs of Ellis also affirmed the trial court’s denial of the
motion to intervene filed by the husband’s heirs. Id. at 715. The High Court explained
that with regard to property held as tenants by the entirety, such property automatically
and immediately passed to the wife upon the death of the husband and was unaffected by
the terms of Tennessee Code Annotated § 31-3-120 because the statute did not
specifically address entireties property. Id. at 711 (“Subsection (a) [of Tennessee Code
Annotated § 31-3-120] does not include entireties property within its list of affected
interests, and subsection (b) does not include entireties property because it only affects
‘devisees.’”). The Court further explained that Tennessee Code Annotated § 31-3-104
was inapplicable because the spouses did not die simultaneously. Id. at 714. The Court
declined to interpret the provision in Tennessee Code Annotated § 31-3-104 regarding
simultaneous death to mean “within 120 hours” as specified in § 31-3-120. Id. (“[T]he
term ‘simultaneously’ should continue to receive its ordinary construction, meaning ‘at
the same time.’”).

        We determine Heirs of Ellis to be distinguishable and unavailing with regard to
the case at bar. In this matter, the undisputed proof demonstrated that the real properties
at issue were titled solely to Decedent and were not held as tenants by the entirety or even
as tenants in common, as opposed to the circumstances in Heirs of Ellis. Id. at 711. In
addition, we note that Decedent and Ms. Shell did not die simultaneously in time.
Therefore, by its plain terms, Tennessee Code Annotated § 31-3-104 has no application
3
    Tennessee Code Annotated § 31-3-104 (2015) provides:

          Where there is no sufficient evidence that two (2) joint tenants or tenants by the entirety
          have died otherwise than simultaneously, the property so held shall be distributed one-
          half (½) as if one had survived and one-half (½) as if the other had survived. If there are
          more than two (2) joint tenants and all of them have so died, the property thus distributed
          shall be in the proportion that one bears to the whole number of joint tenants.
                                                      5
herein. See Estate of Hull v. Estate of Culver, No. E2014-01213-COA-R3-CV, 2015 WL
720851, at *3 (Tenn. Ct. App. Feb. 19, 2015) (citing Heirs of Ellis in determining that §
31-3-104 was “inapplicable when the record clearly established that the couple did not
die at the same time.”).

        Furthermore, because the properties were not held as tenants by the entirety and
because Decedent left no will devising the real properties to Ms. Shell, the only manner
by which Ms. Shell would have inherited an interest in the properties would be by virtue
of “homestead allowance, year’s support allowance, exempt property, elective share[, or]
intestate succession,” which clearly brings this matter within the parameters of Tennessee
Code Annotated § 31-3-120(a). As such, the trial court properly determined that because
Ms. Shell had failed to survive Decedent by 120 hours, her estate possessed no interest in
the real properties at issue.

                             V. Attorney’s Fees on Appeal

       The Estate has requested an award of attorney’s fees incurred in defending this
appeal, which the Estate characterizes as frivolous. As this Court has previously
explained regarding frivolous appeals:

             Parties should not be forced to bear the cost and vexation of baseless
      appeals. Accordingly, in 1975, the Tennessee General Assembly enacted
      Tenn. Code Ann. § 27-1-122 to enable appellate courts to award damages
      against parties whose appeals are frivolous or are brought solely for the
      purpose of delay. Determining whether to award these damages is a
      discretionary decision.

            A frivolous appeal is one that is devoid of merit, or one that has no
      reasonable chance of succeeding.

Young, 130 S.W.3d at 66-67. Similarly, Tennessee Code Annotated § 27-1-122 provides:

      When it appears to any reviewing court that the appeal from any court of
      record was frivolous or taken solely for delay, the court may, either upon
      motion of a party or of its own motion, award just damages against the
      appellant, which may include, but need not be limited to, costs, interest on
      the judgment, and expenses incurred by the appellee as a result of the
      appeal.




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       Exercising our discretion, we do not determine that this appeal was frivolous or
taken solely for delay. We therefore decline to award attorney’s fees to the Estate as
damages in this matter.

                                     VI. Conclusion

       For the aforementioned reasons, we affirm the trial court’s judgment in favor of
the Estate. We decline to award attorney’s fees to the Estate as damages for the filing of
a frivolous appeal. This case is remanded to the trial court for enforcement of the trial
court’s judgment and collection of costs assessed below. Costs on appeal are assessed to
the appellants, Walt Burnett and Kipp Burnett.




                                                _________________________________
                                                THOMAS R. FRIERSON, II, JUDGE




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