                  IN THE COURT OF APPEALS OF TENNESSEE
                               AT JACKSON
                                      June 18, 2008 Session

                 IN RE: ESTATE OF WILLIAM ANTHONY LUCY

   RITA CLARK, SHELBY COUNTY ASSESSOR OF PROPERTY ET AL.
                            V.
    NAOMI SCHUTTE, AS ADMINISTRATRIX OF THE ESTATE OF
                  WILLIAM ANTHONY LUCY

                   Direct Appeal from the Probate Court for Shelby County
                          No. D-1164-2    Karen D. Webster, Judge



                      W2007-02803-COA-R3-CV - Filed August 20, 2008


The Shelby County Assessor and Shelby County moved to intervene in a probate case in order to
amend a prior order previously entered adjudicating a claim made against the decedent’s estate by
the City of Memphis for delinquent personal property taxes. The would-be intervenors claimed as
their interest in the case the possibility that the probate court’s decision might be deemed preclusive
in a tangentially related chancery proceeding. The probate court denied the motion to intervene and
ordered that the movants pay the estate’s attorney’s fees. We conclude that the movants did not
possess a substantial legal interest in the litigation warranting their intervention under Tenn. R. Civ.
P. 24.01, and we further conclude that the probate court did not abuse its discretion in finding the
motion to be untimely. Accordingly, we affirm the probate court’s denial of the motion to intervene
as well as its denial of a companion motion made under Tenn. R. Civ. P. 60.02. We, however,
vacate its decision awarding the estate attorney’s fees.

 Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court Affirmed in Part,
                            Vacated in Part, and Remanded

WALTER C. KURTZ, SR. J., delivered the opinion of the court, in which ALAN E. HIGHERS, P.J., W.S.,
and DAVID R. FARMER , J., joined.

Brian L. Kuhn, Shelby County Attorney, and Thomas E. Williams, Assistant County Attorney, for
the appellants, Rita Clark, Shelby County Assessor of Property, and Shelby County, Tennessee.

Jerry H. Schwartz, Memphis, Tennessee, for the appellee, Naomi Schutte, as Administratrix of the
Estate of William Anthony Lucy.
                                              OPINION

        This is an appeal by Rita Clark, Assessor of Property for Shelby County, Tennessee, and
Shelby County itself (Assessor and County) from a judgment of the Probate Court for Shelby
County. The Assessor and County sought to intervene in a probate case, but this motion was denied;
the probate court then taxed them with attorney’s fees. For the reasons stated herein, the decision
below denying the motion to intervene (as well as denying a related motion under Tenn. R. Civ. P.
60.02) is affirmed, that portion of the probate court’s order awarding attorney’s fees is vacated, and
this case is remanded for further proceedings consistent with this opinion.

                                                   I

        William Anthony Lucy (Decedent) died testate on July 6, 2006. His will was admitted to
probate in Shelby County, Tennessee, and his sister, Naomi Schutte, was appointed administratrix
of his estate (Estate) by an order dated July 19, 2006. That same order allowed Ms. Schutte to
continue operating a vehicle towing business that had been owned by the Decedent during his life.
Prior to his death, the Decedent had managed to incur a substantial tax debt to the City of Memphis
due to his failure to pay or contest various assessments of taxes owed on certain of his personal
property.

        On November 13, 2006, the City of Memphis filed a claim against the Estate for these unpaid
taxes. It contended that the Decedent owed $90,866.14. The probate court held a hearing on January
17, 2007 as to this claim. The Estate and the City of Memphis both appeared through counsel. The
court determined that the amount owed should be adjusted to $15,898.16. There is no transcript of
this hearing. Following the hearing, the probate court entered an order, which reads in pertinent part
as follows:

       The Court has determined that the proper personal property tax assessments and the
       resulting personal property tax liability of William Anthony Lucy and his Estate for
       years 2001-2006 should be adjusted in accordance with and as calculated on the
       schedule attached hereto.

       WHEREFORE it is ordered, adjudged and decreed that the schedules attached hereto
       are complete and accurate and the Estate is indebted to the City of Memphis for
       personal property taxes, interest, penalties and related fees . . . in the total amount of
       $15,898.16 for tax years 2001, 2002, 2003, 2004, 2005, and 2006.

This order was dated January 24, 2007. No appeal was taken by the City of Memphis. Also on the
24th of January, the Estate filed a complaint in the Chancery Court for Shelby County alleging that
the Assessor had failed to comply with State Board of Equalization rules governing the calculation
of tax assessments for the years 2001 through 2004.

       On September 14, 2007, the Assessor and County moved to intervene in the probate action


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pursuant to Tenn. R. Civ. P. 24.01. On October 1, 2007, they filed a motion under Tenn. R. Civ. P.
60.02 seeking to set aside the order of January 24, 2007. These motions were heard on October 12,
2007 and denied by an order dated November 2, 2007. In addition to denying these motions, the
order taxed the Assessor and County with the Estate’s attorney’s fees related to opposing these
motions. The specific amount of attorney’s fees was left undetermined by the probate court. This
appeal followed.

                                                  II

       Unfortunately, the Assessor and County spill much ink attacking the probate court’s order
of January 24, 2007 and, more specifically, making arguments concerning that court’s jurisdiction.
Their contention is that the language of the January 24th order incorrectly presumes that the probate
court had jurisdiction to recalculate and revise the tax assessments at issue. This argument is
misplaced. Unless and until the Assessor and County are allowed to intervene in this case, they have
no standing to challenge or complain of the probate court’s actions.

       Rule 24 of the Tennessee Rules of Civil Procedure governs intervention. Rule 24.01
addresses intervention as of right, while Rule 24.02 covers permissive intervention. In spite of some
suggestion in their brief on appeal to the contrary, the Assessor and County clearly only sought
intervention as of right pursuant to Tenn. R. Civ. P. 24.01 in the probate court below.

        There are three bases upon which a movant may obtain intervention under Tenn. R. Civ. P.
24.01. One of these is by “stipulation of the parties.” Tenn. R. Civ. P. 24.01(3). That is certainly
not the case here. Another provision provides for intervention “when a statute confers an
unconditional right to intervene.” Tenn. R. Civ. P. 24.01(1). The Assessor and County have not
argued this as a basis and have not cited to us any statute that might provide for their intervention
in this case. There is, though, a third possible basis upon which intervention as of right may be
obtained, and that is “when the applicant claims an interest relating to the property or transaction
which is the subject of the action and the applicant is so situated that the disposition of the action
may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the
applicant’s interest is adequately represented by existing parties[.]” Tenn. R. Civ. P. 24.01(2).

       Our Supreme Court has explained the language of Tenn. R. Civ. P. 24.01(2) as follows:

       A party seeking to intervene as of right under Rule 24.01 must establish that (1) the
       application for intervention was timely; (2) the proposed intervenor has a substantial
       legal interest in the subject matter of the pending litigation; (3) the proposed
       intervenor’s ability to protect that interest is impaired; and (4) the parties to the
       underlying suit cannot adequately represent the intervenor’s interests.

State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 190-91 (Tenn. 2000) (citing Michigan
State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997)). The burden of showing that these
requirements have been met rests with the would-be intervenor. Blount v. City of Memphis, No.


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W2006-01191-COA-R3-CV, 2007 WL 1094155, at *2 (Tenn. Ct. App. April 13, 2007) (citing
Brown & Williamson Tobacco Corp., 18 S.W.3d at 191). “Intervention is concerned with something
more than standing to sue[.]” 59 Am. Jur. 2d Parties § 179 (2008). “Where the question is not
simply one of standing, but of the right to intervene, the interest must be more refined, more direct,
and more substantial.” Id.

        “Where the [m]otion to [i]ntervene is an intervention as of right, the standard by which this
court reviews the trial court’s decision is ‘de novo, except for the timeliness of the application which
is reviewed under an abuse of discretion standard.’” In re Estate of Brown, No. M2005-00864-COA
-R3-CV, 2006 WL 3071247, at *2 (Tenn. Ct. App. Oct. 27, 2006) (quoting Brown & Williamson
Tobacco Corp., 18 S.W.3d at 191); see Gonzalez v. State Dep’t of Children’s Services, 136 S.W.3d
613, 618 (Tenn. 2004) (“For denial of intervention as of right (for a reason other than the timeliness
of the application), review is de novo.”) (citation omitted).

                                                  III

                                      A. Motion to Intervene

        Timeliness is a requirement for a motion to intervene under Tenn. R. Civ. P. 24.01(2), and
the probate court’s order reflects that this was one of its prime considerations in denying the motion.
That order articulates its reasons for finding the motion to be untimely, including the fact that the
motion came several months after the probate court had entered its order disposing of the tax claim
made by the City of Memphis and administration of the Estate was nearing completion. Under these
circumstances, the probate court did not abuse its discretion in denying the motion for want of
timeliness. See, e.g., American Materials Techs., LLC v. City of Chattanooga, 42 S.W.3d 914, 916
(Tenn. Ct. App. 2000) (articulating the “equitable principles” to be used in assessing the timeliness
of a motion to intervene) (citations omitted).

        Moreover, denial of the motion was undoubtedly proper due to the lack of any substantial
legal interest on the part of the Assessor and County in these probate proceedings. We note that,
while the Assessor and County bear the burden of showing how they might be affected by this case,
they have identified as their only interest some vague concern about the probate court’s order of
January 24, 2007 potentially being deemed preclusive in litigation involving the Assessor’s method
of making tax assessments.

        This concern is unfounded. The probate court’s decision revising the assessment occurred
when the City of Memphis sought to collect a tax debt from the Estate. The interest at stake then
was nothing more than the amount of money alleged to be owed to the City of Memphis. To the
extent that the probate court was then in error, the City of Memphis had the interest in appealing and
thus in obtaining the full amount of the tax assessment—but, it did not appeal. It appears that the
Assessor and County now seek intervention simply so that they can win a declaration that the probate
court never possessed jurisdiction to revisit these tax assessments and that instead the diminution
should have been considered as nothing more than a compromise and settlement of the debt.


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        We believe that the interests of the City of Memphis and the Assessor are so obviously
distinct that the actions of the probate court in this case would not affect the chancery proceedings.
The City of Memphis and the Assessor are separate governmental entities with different
responsibilities. Tactical concessions made by the City of Memphis would thus have no preclusive
effect on the Assessor or County in litigation concerning the manner in which the Assessor performs
assessments.

        As for the intimation seemingly now made on appeal by the Assessor and County that they
also met the requirements for permissive intervention under Tenn. R. Civ. P. 24.02, that basis was
not properly presented to the probate court below. But, in light of the foregoing reasons for denying
the motion under Tenn. R. Civ. P. 24.01—and this would extend to consideration of the untimeliness
of the proposed intervention—there would have been no abuse of discretion in also denying a motion
for permissive intervention, even if it had been sought. See Mfrs. Consol. Serv., Inc. v. Rodell, 42
S.W.3d 846, 861 (Tenn. Ct. App. 2000) (“[T]he decision to allow a permissive intervention is a
matter entrusted to the trial court’s discretion.”) (citation omitted).

                             B. Motion under Tenn. R. Civ. P. 60.02

       It appears that the Assessor and County made their motion under Tenn. R. Civ. P. 60.02 in
the event that their motion to intervene was granted. As their motion to intervene was properly
denied, their motion under Tenn. R. Civ. P. 60.02 is irrelevant.

                                         C. Attorney’s Fees

       The Assessor and County also challenge the probate court’s order awarding the Estate
attorney’s fees related to opposing these two motions. This was clearly erroneous.

        Tennessee follows the so-called “American Rule” under which attorney’s fees generally may
not be awarded to a prevailing party “absent statutory authorization or an agreement between the
parties so providing.” John Kohl & Co., P.C. v. Dearborn & Ewing, 977 S.W.2d 528, 534 (Tenn.
1998); see Elliott v. Elliott, 149 S.W.3d 77, 88 (Tenn. Ct. App. 2004). While recourse to broad
principles of equity may sometimes warrant an award of attorney’s fees, it must be supported by a
“recognized” ground of equity. See Austin Powder Co. v. Thompson, No. 03A01-9607-CV-00229,
1996 WL 718291, at *2 (Tenn. Ct. App. Dec. 16, 1996) (citing State v. Thomas, 585 S.W.2d 606
(Tenn. 1979)). Cases of will construction are a well-established exception to the “American Rule,”
In re Estate of Greenamyre, 219 S.W.3d 877, 884-85 (Tenn. Ct. App. 2005), but this is not a case
of will construction.

         In defending the probate court’s action, the Estate argues, among other things, that the award
is justified by general grounds of equity and that an analogy to the “tort of another doctrine” is




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appropriate.1 See Evans v. Young, No. 01A01-9711-CV-00638, 1999 WL 11510, at *3-4 (Tenn. Ct.
App. Jan. 14, 1999). We must reject these arguments. The actions of the Assessor and County were
not tortious, and we know of no recognized equitable exception that would be applicable here. The
decision of the trial court awarding the Estate attorney’s fees is accordingly vacated.

                                                 D. Frivolity of Appeal

         The Estate has moved pursuant to Tenn. Code Ann. § 27-1-122 to have this appeal deemed
frivolous. “A frivolous appeal is one that is ‘devoid of merit,’ or one in which there is little prospect
that it can ever succeed.” Indus. Dev. Bd. of City of Tullahoma v. Hancock, 901 S.W.2d 382, 385
(Tenn. Ct. App. 1995) (citations omitted).

       We have considered the Estate’s motion, and we conclude that it is not well-taken. First, the
probate court’s award of attorney’s fees was erroneous, and, thus, it cannot be said that the entirety
of this appeal is without merit. Cf., e.g., Justice v. Coker, Nos. 03A01-9606-CV-00191,
03A01-9606-CV-00192, 1996 WL 622695, at *2 (Tenn. Ct. App. Oct. 29, 1996). Additionally, the
power to sanction frivolous appeals must be employed “sparingly so as not to discourage legitimate
appeals.” Whalum v. Marshall, 224 S.W.3d 169, 181 (Tenn. Ct. App. 2006) (citing Davis v. Gulf
Ins. Group, 546 S.W.2d 583, 586 (Tenn. 1977)). As such, the Estate’s motion is respectfully
overruled.

                                                               IV

        For the foregoing reasons, the decision of the probate court denying the motion to intervene
made by the Assessor and County is affirmed as is its decision denying the motion made under Tenn.
R. Civ. P. 60.02. That part of the probate court’s order taxing them with attorney’s fees is vacated.
The motion seeking to have this appeal deemed frivolous is denied, and this case is remanded for
further proceedings consistent with this opinion. Costs are taxed to the Assessor and County, as well
as their surety, for which execution may issue if necessary.




                                                                      _________________________________
                                                                      WALTER C. KURTZ, SENIOR JUDGE




          1
           “[T]he ‘tort of another doctrine’ . . . [applies when a party] . . . has been forced into litigation with a third party
as the result of the defendant’s wrongful or tortious conduct.” Evans, 1999 W L 11510, at *4.

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