                                                                                           10/02/2018
                IN THE COURT OF APPEALS OF TENNESSEE
                           AT KNOXVILLE
                                 April 19, 2018 Session

             IN RE ESTATE OF MATTIE L. METTETAL, DECEASED
               Appeal from the Probate Court for Washington County
                     No. P0956 John C. Rambo, Chancellor
                           ___________________________________

                             No. E2017-01258-COA-R3-CV
                           ___________________________________

The petitioner, Ray W. Mettetal, Jr., filed a declaratory judgment action seeking to
establish that the will of his mother, the deceased Mattie L. Mettetal, directs that the real
property devised to him in the will should be administered as part of the estate. Petitioner
asked the trial court to declare that the will required the administrator to pay the
$40,057.35 in costs and improvements expended by petitioner on the real property out of
the residuary of the estate. The court denied petitioner’s request. It held that the real
property vested immediately in petitioner at the deceased’s death, and therefore it was not
part of the probate estate for administration purposes. We affirm that decision. We
reverse the trial court’s order to the extent it directs that attorney’s fees, costs, and
expenses accrued in a prior appeal to this Court be deducted from petitioner’s distributive
share of the estate.

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

CHARLES D. SUSANO, JR., J., delivered the opinion of the court, in which JOHN W.
MCCLARTY and THOMAS R. FRIERSON, II, JJ., joined.

Harry Curtis Williams, Johnson City, Tennessee, for the appellant, Ray W. Mettetal, Jr.

Rebecca J. Ketchie, Kingsport, Tennessee, for the appellee, Joel A. Conkin,
Administrator C.T.A. of the Estate of Mattie L. Mettetal.

Brett A. Cole, Johnson City, Tennessee, for the appellees, Mattie Angelique Phipps and
Yvonne M. Rayburn.




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                                          OPINION

                                               I.

        At an earlier time, the petitioner was sued by the administrator of the deceased’s
estate. In the prior suit, the trial court held that, during the deceased’s life, the petitioner
used his durable power of attorney to make numerous withdraws and purchases from the
deceased’s accounts for his personal benefit. On appeal of the earlier suit, this Court
affirmed. The extent of the petitioner’s abuse of his fiduciary power and conversion of
the deceased’s assets are outlined in this Court’s prior decision, in Conkin v. Mettetal,
No. E2015-141-COA-R3-SV, 2015 WL 9259962 (December 17, 2015) (holding that Dr.
Mettetal breached his fiduciary duty and improperly converted the deceased’s funds to
his benefit and the benefit of his corporation). Audaciously, petitioner now seeks
reimbursement from the deceased’s probate estate for expenses he unilaterally spent
improving and maintaining the real property he wholly inherited.

       On December 9, 2009, the deceased died testate. On February 17, 2010, her last
will and testament was admitted to probate; Joel A. Conkin was appointed as
administrator of the estate. In Item three of the deceased’s will, she devised all of her real
property, in Washington County, Tennessee, to the petitioner. After the will was admitted
to probate, petitioner asked the administrator to have the estate reimburse him for various
expenses he expended on the real property he inherited. On March 16, 2010, the
administrator wrote the petitioner to inform him that the estate would pay expenses for
only four months after the deceased’s death, pursuant to applicable law, in exchange for
allowing the tangible personal property still in the estate to continue to be stored on the
premises. On April 15, 2010, the administrator informed the petitioner that petitioner
would be responsible for the utilities and maintenance of the real estate for April and all
subsequent months. On March 17, 2011, the administrator wrote petitioner to further
advise him that, “[p]ursuant to Tennessee law, the real estate passed to you upon your
mother’s death and, therefore, at this time, any income received from the rental property
is your income and not income of the estate.” The administrator informed petitioner that
he should report the rental income from the property on his personal tax return.

       On October 31, 2011, petitioner filed this declaratory judgment petition. Therein,
he requested $40,057.35 for assorted expenses and improvements he unilaterally decided
to spend on the real property he inherited. These expenses and improvements included:
landscaping labor ($9,200), landscaping materials and repair ($11,957.06), real estate
taxes ($16,179.75), insurance premiums ($756), utilities ($1,638.54), and a security
system ($324). Petitioner asserts that these expenses were reasonable and necessary for
maintenance of the real property. He argues that from February 2002 until the present, he
“participated in and supervised the care, maintenance and repair of the [r]eal [p]roperty
including the houses, barn, outbuildings and grounds.”


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       On August 23, 2012, the trial court heard argument on petitioner’s declaratory
judgment action and the administrator’s response. On September 25, 2012, the court
entered an order holding that the real property owned by the deceased vested immediately
in petitioner upon her death, and that it is therefore not part of the probate estate for
administration purposes. Petitioner’s request for expenses was denied.

                                           II.

      The following issues are presented for review:

             Whether the trial court erred in denying petitioner’s request
             for reimbursement from the estate for certain expenses he
             expended on the real estate devised to him by the deceased.

             Whether the court erred in finding that the respondent’s legal
             fees and costs for opposing an appeal filed by petitioner in a
             related case were chargeable against the distributive share of
             petitioner.

                                           III.

       A declaratory judgment proceeding is proper for resolving disputes as to the
interpretation or construction of wills. Daugherty v. Daugherty, No. C.A. 145, 1987 WL
5338, at *1 (Tenn. Ct. App. Jan. 16, 1987); Sternberger v. Glenn, 175 Tenn. 644, 137
S.W.2d 269 (1940). This Court discussed the standard of review to be applied in cases
involving the construction of a will in Horadam v. Stewart:

             The construction of a will is a question of law for the court;
             therefore, we review the trial court's conclusions of law de
             novo affording them no presumption of correctness. In cases
             involving the construction of wills, the cardinal rule “is that
             the court shall seek to discover the intention of the testator,
             and will give effect to [that intent] unless it contravenes some
             rule of law or public policy.” Furthermore, in will
             construction cases, we rely on the language of the instrument
             to determine the testator's intent:

                    [T]he testator's intention must be ascertained
                    from “that which he has written” in the will, and
                    not from what he “may be supposed to have
                    intended to do,” and extrinsic evidence of the
                    condition, situation and surroundings of the
                    testator himself may be considered only as aids

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                     in the interpretation of the language used by the
                     testator, and “the testator's intention must
                     ultimately be determined from the language of
                     the instrument weighed in the light of the
                     testator's surroundings, and no proof, however
                     conclusive in its nature, can be admitted with a
                     view of setting up an intention not justified by
                     the language of the writing itself.”

(Internal citations omitted). Horadam v. Stewart, M2007–00046–COA–R3–CV, 2008
WL 4491744, at *5 (Tenn. Ct. App. Oct. 6, 2008), Rule 11 appl. perm. appeal denied
April 27, 2009.

                                             IV.

         We first consider whether the deceased intended the real property inherited by
petitioner to be administered as part of her estate. As previous noted in this opinion, in
will construction cases, we rely on the language of the instrument to determine the
testator’s    intent.   See     In     re    Estate     of    Schubert,      2015 Tenn. App.
LEXIS 552 (July 15, 2015). In this case, the parties’ disagreement centers on how Items
Three and Seven of the deceased’s will are to be interpreted in light of one another.
Petitioner argues that the plain language of Items Three and Seven of the will, when read
in conjunction, dictate that the real property is to wholly vest in petitioner, but that it is
first to be administered as part of the probate estate. He argues that all expenses regarding
the maintenance and improvement of the real estate must therefore be paid out of the
probate estate.

       Tenn. Code Ann. § 31-2-103, which controls the vesting of real property following
a death, provides in pertinent part:

              [T]he real property of an intestate decedent shall vest
              immediately upon death of the decedent in the heirs as
              provided in § 31–2–104. The real property of a testate
              decedent vests immediately upon death in the beneficiaries
              named in the will, unless the will contains a specific provision
              directing the real property to be administered as part of the
              estate subject to the control of the personal representative.

Tenn. Code Ann. § 31-2-103 (2018). Item Three of the deceased’s will states in pertinent
part that:

              [I] give, devise and bequeath all real estate owned by me at
              the time of my death located in Washington County,

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              Tennessee, including but not limited to my home and rental
              house and approximately twenty-two (22) acres upon which
              they are situated to my son, Ray Mettetal, Jr., if he shall
              survive me by a period of thirty (30) days.

Petitioner in fact survived the deceased by more than thirty days, and therefore he
inherited the real property, in Washington County, Tennessee. In Item Seven C of the
will, which outlines powers of the administrator, it states in pertinent part that:

              [A]ny real property which I own at my death is to be a part of
              my probate estate and treated as forming part of my personal
              estate for administrative purposes.

       In reviewing the above provisions and attempting to ascertain the intent of the
testator, administrator relies on this Court’s discussion in In re Estate of Schubert,
2015 Tenn. App. LEXIS 552. Therein this Court was asked to determine when real
property owned by the decedent vested in the beneficiary. In making its decision, this
Court discussed terms commonly used in testamentary instruments to convey the
testator’s intent in devising real property. This Court held that the words “be given,”
when used in the Ms. Schubert’s testamentary instrument, indicated that further action
needed to be taken for the property to vest; the real property was to be “given” to the
beneficiary as part of his share of the estate. In so holding, the Court noted that when a
testator adds additional language, such as “devise” and “bequeath,” it indicates the
testator’s intent that no further action is to be necessary for the property to vest. See Id.

       Enlightened by the above discussion, in the present matter, unlike the testamentary
instrument in In re Estate of Schubert, Item Three of the deceased’s will includes the
bequeathing terms “devise” and “bequeath.” We hold that these terms, as used in Item
Three of the deceased’s will, indicate the deceased’s desire to have the property located
in Washington County, Tennessee vest immediately in petitioner at her death. No action
was required of the estate for that property to vest in petitioner. Item Seven serves to
empower the administrator with the ability to dispense with any additional real property
that the deceased may have owned at her death – i.e. real property other than the real
property in Washington County, Tennessee specifically left to petitioner.

        The conduct of the petitioner before and after the deceased’s death further
supports the above will construction. The record reflects that petitioner has exercised
complete control over the real property devised to him since the deceased’s death. He
lives in the primary residence. He negotiated and entered into leasing agreements
allowing tenants to occupy other buildings on the property. He has retained all of the
rental income for himself – a sum in excess of $55,000. Furthermore, on December 11,
2014, while the estate was still open, he executed a quitclaim deed for the real property
from himself to himself, and had the deed recorded. Then, on November 3, 2015, he

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executed an Open End Deed of Trust pledging the property to secure a loan from First
Tennessee Bank with a maximum indebtedness of $400,000. Respondent argues that
petitioner is accordingly estopped from asserting the property did not immediately vest,
because

              [t]he Administrator (on behalf of the estate) and First
              Tennessee Bank relied on Dr. Mettetal’s ownership of the
              property to their detriment by allowing Dr. Mettetal to live on
              the property, paying four months of expenses in exchange for
              storage space on the property, forbearing from demanding
              rental income from the property, and accepting the property
              as security for a $400,000 loan.

We agree and affirm.

                                            V.

       In Conkin v. Mettetal, No. E2015-141-COA-R3-SV, 2015 WL 9259962, an
appeal from the Chancery Court for Washington County, Civil Action No. 41871, the
administrator requested an award of attorney’s fees and expenses in the amount of
$16,356.16 for services necessitated by the appeal. This Court declined to award the
requested attorney’s fees and expenses against the current petitioner, because the
administrator failed to cite legal authority supporting the request. See Conkin v. Mettetal,
No. E2015-141-COA-R3-SV, 2015 WL 9259962 (Tenn. Ct. App. Dec. 17, 2015). The
administrator filed a petition for rehearing on the issue of attorneys’ fees and expenses.
On February 8, 2016, this Court denied the petition. On June 23, 2016, the application for
permission to appeal was denied by our Supreme Court.

       On September 6, 2016, the administrator filed his petition with the trial court for
approval of the executor and attorney’s fees, costs, and expenses he incurred representing
and administering the estate. In that petition, administrator again asked that the fees he
accrued because of the above referenced appeal be levied against the current petitioner,
and be deducted from petitioner’s distributive share of the estate. On October 11, 2016,
the court entered an order approving his request. In its order, the court stated that:

              [t]he Court further finds that fees and expenses in the total
              amount of Sixteen Thousand Three Hundred Fifty-Six Dollars
              and Sixteen Cents ($16,356.16) attributable to the
              Administrator’s resistance of the appeal of the Judgment
              entered November 14, 2014, and the Rule 60.01 Order
              entered December 2, 2014, in the case of Joel A Conkin,
              Administrator With Will Annexed to the Estate of Mattie L.
              Mettetal v. Ray W. Mettetal, Jr., M.D. and Ray W. Mettetal,

                                            -6-
              Jr., M.D., Inc., Chancery Court for Washington County,
              Tennessee, Civil Action No. 41871, were reasonable and
              necessary to preserve and recover assets rightfully belonging
              to the Estate of Mattie L. Mettetal, and that said fees and
              expenses should be charged against the distributive share of
              Ray W. Mettetal, Jr. M.D. of the Estate of Mattie L. Mettetal.

       Petitioner argues that the doctrine of res judicata precluded the trial court from
subsequently awarding attorney’s fees incurred in the previous appeal specifically against
petitioner’s distributive share of the estate, in its October 11, 2016 order. Respondent
counters that the doctrine of res judicata does not apply, because

              this Court did not deny the Administrator’s request for
              attorney’s fees. The Court’s disinclination to award attorney’s
              fees was not a final decision on the merits; rather it was based
              on its belief that the issue was inadequately raised on appeal.
              The Court then remanded the case for proceedings in the
              Chancery Court below consistent with its opinion.

(Emphasis in original).

        Under the doctrine of res judicata, a final judgment on the merits that is rendered
by a court of competent jurisdiction concludes the rights of the parties and their privies,
and, with respect to them, bars a subsequent action involving the same claim or cause of
action. Richardson v. Tenn. Bd. of Dentistry, 913 S.W.2d 446, 459 (Tenn. 1995). If a
judgment on the merits is final for purposes of res judicata, it resolves all the issues in the
case, leaving nothing else for the trial court to do. Hooker v. Haslam, 393 S.W.3d 156,
169 (Tenn. 2012) (citing In re Estate of Ridley, 270 S.W.3d 37, 40 (Tenn. 2008)). This
Court has stated that “it is sufficient that the status of the action was such that the parties
might have had their suit thus disposed of, if they had properly presented and managed
their respective cases.” Brown v. Shappley, 290 S.W.3d 197, 200–01 (Tenn. Ct. App.
2008); Madyun v. Ballard, 783 S.W.2d 946, 948 (Tenn. Ct. App. 1989) (quoting Parkes
v. Clift, 77 Tenn. 524 (1882) (stating that “the decision may be clearly wrong, or may be
against the losing party because he…failed to present his case as the facts within his
knowledge, or obtainable by reasonable diligence, would have enabled him to do[]”).

       In this Court’s December 17, 2015 opinion, which resolved the appeal of
Washington County Civil Action No. 41871, we held that “we decline to award the
Administrator attorney’s fees and expense on appeal.” Administrator’s subsequent
request that the trial court order petitioner to pay the fees accrued as a result of the appeal
of Civil Action No. 41871 was precluded by this Court’s prior holding. The trial court’s
granting of administrator’s request, in its October 11, 2016 order, was therefore in error.
That issue had already been ruled on by this Court as legally deficient, and the trial

                                              -7-
court’s decision was not consistent with our opinion. We reverse the trial court’s October
11, 2016 order to the extent it directs that the attorney’s fees, costs, and expenses accrued
in the appeal of Civil Action No. 41871 was to be charged against the distributive share
of petitioner.

       However, the administrator is still “entitled to reasonable compensation for [his]
services[] and to payment from the estate for reasonable expenses incurred in good faith
for the exclusive and necessary benefit of the estate.” In re Estate of Sanderson, No.
W2001-01938-COA-R3CV, 2002 WL 31423847, at *5 (Tenn. Ct. App. Oct. 28, 2002);
In re Estate of Wallace, 829 S.W.2d 696, 700–701 (Tenn.Ct.App.1992) (internal citation
omitted). Therefore, we direct that the trial court is to grant administrator the fees, costs,
and expenses it deems reasonable and necessary for representing and administering the
estate; it is to be taken from the residuary of the estate as a whole. At the court’s
discretion, and pursuant to applicable law, it may also consider awarding administrator
additional attorney’s fees, expenses, and costs incurred in this action, if any are so
requested.

                                             VI.

       The judgment of the trial court is affirmed in part and reversed in part. Costs on
appeal are taxed to the appellant, Ray W. Mettetal, Jr. This case is remanded to the trial
court for further proceedings, pursuant to applicable law, consistent with this opinion.



                                                     _______________________________
                                                     CHARLES D. SUSANO, JR., JUDGE




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