                IN THE COURT OF APPEALS OF TENNESSEE
                            AT NASHVILLE
                               November 16, 2012 Session

                IN RE ESTATE OF ANN M. TAYLOR, DECEASED

                  Appeal from the Chancery Court for Wilson County
                     No. A112    John Thomas Gwin, Chancellor


                No. M2012-00596-COA-R3-CV - Filed January 28, 2013


Former administrator of decedent’s estate appeals order denying his Tenn. R. Civ. P. 60.02
motion, which sought relief from an order requiring him to reimburse the estate for fees
incurred by the successor administrator. Finding no error, we affirm.

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

R ICHARD H. D INKINS, J., delivered the opinion of the court, in which F RANK G. C LEMENT,
J R. and A NDY D. B ENNETT, JJ., joined.

Alan Dale Johnson, Nashville, Tennessee, for the Appellant, Christopher Fox.

James Daniel Richardson Roberts, Jr. and Janet L. Layman, Nashville, Tennessee, for the
Appellee, James D. R. Roberts, Administrator, c.t.a.

                                          OPINION

        On January 12, 2001, Christopher Fox, the Public Administrator of Wilson County,
filed a Petition for Probate of Will and Granting of Letters of Administration, c.t.a., relative
to the Estate of Ann Taylor; the Chancery Court granted the petition. Mr. Fox filed an
inventory of Ms. Taylor’s estate on May 31 showing assets totaling nearly $500,000.00.

        On March 4, 2002, James D. R. Roberts, Jr., Mr. Fox’s former law partner, notified
the court that Mr. Fox had been suspended from the practice of law and offered to assume
the role of substitute administrator. On April 14, Mr. Roberts filed a petition to be appointed
substitute administrator and that he be granted “all the rights, responsibilities and powers of
administration of the estate in order to bring said estate to the proper conclusion, including
investigating any past improprieties associated with the past administration of this estate.”
On April 19 the court granted the petition and appointed Mr. Roberts as administrator c.t.a.
        On June 3, 2002, Mr. Roberts filed a Motion and Order to Compel asserting that, as
of May 30, Mr. Fox had refused to turn over information in his possession relative to the
estate and requesting that Mr. Fox be held in contempt. On June 5 the court entered an order,
inter alia, finding that Mr. Fox had failed to appear at the hearing on the motion, holding him
in contempt for failure to turn over the information and the resulting delay in getting a new
inventory prepared, and issuing a Motion to Show Cause against Mr. Fox.

        On July 3 Mr. Fox filed a response to the Motion and Order to Compel and Motion
to Show Cause in which he asserted that he had turned over the materials on June 11,1
explaining his absence from court on June 5 and July 3,2 and requesting that the motion to
compel be stricken and the motion to show cause denied. Also on that date, Mr. Roberts
filed a motion requesting that Mr. Fox be ordered to pay the estate fees totaling $337.07
incurred as a result of Mr. Fox’s failure to turn over necessary bank records and a key to the
decedent’s home; the court granted Mr. Roberts’ motion.

        On July 17 Mr. Roberts filed an interim accounting and inventory as well as a motion
to pay attorney and administrator fees; the court granted Mr. Roberts’ motion and ordered
that he be paid a fee in the amount of $5,154.50 from the estate account. The court also
entered an order requiring Mr. Fox to reveal information related to transfer of funds from the
estate and to make restitution to the estate for any interest lost due to the improper transfer
of funds; the order provided that any failure of Mr. Fox to comply would be contempt of
court.

       On July 19 Mr. Roberts moved to execute against Mr. Fox for the $337.07 fees the
court ordered Mr. Fox to pay on July 3; the court granted Mr. Robert’s motion and entered
an order to allow execution against Mr. Fox.

        On July 31 Mr. Roberts filed a Motion to Show Cause alleging that Mr. Fox had not
complied with the court’s July 17 order; specifically, that Mr. Fox had failed to turn over
information regarding his conversion and use of $25,000 in estate funds, which he repaid to
the estate. Mr. Fox responded on August 5 stating that he had not received proper notice of
the court’s July 17 order or Mr. Roberts’ July 31 motion; Mr. Fox requested that the order
and motion be withdrawn and that the Court order that service of all future correspondence
be performed exclusively by the clerk. Mr. Fox also filed a Motion to Alter or Amend with


        1
          In a June 12 letter to the clerk, Mr. Roberts acknowledged that the materials had been deposited
with the clerk by Mr. Fox on June 11.
        2
         Although not clear in the record, it is apparent that a hearing was held on July 3 on the motion to
show cause.

                                                    -2-
respect to the court’s July 3 order requiring him to pay expenses and the July 31 order of
execution; Mr. Fox submitted a payment of $337.07 in the event that the court did not grant
him relief.

        On August 21 Mr. Roberts moved to compel SouthTrust Bank, which held the estate
account, to turn over records related to Mr. Fox’s payment of $25,000 to himself out of the
estate; the court ordered SouthTrust Bank to provide a complete accounting.3

       On November 4 Mr. Roberts filed a Final Accounting and Proposed Final Settlement;
on November 18 he submitted an amended final accounting. Mr. Roberts also filed a second
motion to pay attorney and administrator fees; the court granted his motion on December 18
and ordered that he be paid a fee in the amount of $8,379.57 from the estate account.

        On June 20, 2003, Mr. Roberts moved to finalize the estate; the court granted the
motion on July 14 and ordered Mr. Roberts to “submit an affidavit setting forth the fees and
expenses caused to the estate by the inappropriate actions of the former administrator, Mr.
Fox.” In response, on September 24 Mr. Roberts filed a document styled “Motion to
Attribute Costs to Former Administrator Due to Defalcation While Acting in a Fiduciary
Capacity”; Mr. Roberts attached an affidavit regarding costs caused by Mr. Fox and fee chart
detailing attorney fees and expenses resulting from Mr. Fox’s actions totaling $12,173. The
court held a hearing on the motion on October 15 and entered an order finding that Mr. Fox
“committed acts of malfeasance and defalcation [when] acting in a fiduciary capacity, to wit:
administrator c.t.a. of the said estate” and assessing costs and fees of $12,173 to him.

       On February 4, 2004, the court granted the motion of Jack Lowery allowing him to
withdraw as the attorney of record for Mr. Fox because “Mr. Fox has failed to remain in
contact with counsel, has failed to pay counsel agreed fee and has otherwise been
unresponsive in the preparation of his case.” 4




        3
          On September 5 SouthTrust requested clarification with respect to the court’s order; the court
granted the motion and provided clarification in an Order filed September 19.
        4
          The record filed with this court shows that a copy of the August 21, 2002 motion to compel
SouthTrust Bank to turn over records was served upon Jack Lowery, as attorney for Mr. Fox; the transcript
of the hearing on the motion identifies Mr. Lowery as participating as Mr. Fox’ counsel. Subsequent
pleadings and orders were also served on Mr. Lowery.

                                                  -3-
        On June 20, 2007, the court entered an order removing Mr. Fox as the Administrator
of the estate and expressly noting that Mr. Fox was not relieved of his obligation to repay the
estate.5

        On September 21, 2011, the court entered an order approving the final settlement of
the estate. On October 12 the court entered an order acknowledging that the administration
of the estate was complete and discharging Mr. Roberts as Administrator.

        On December 29, 2011, Mr. Fox filed a motion requesting the court to alter or amend
the October 15, 2003 order or, in the alternative, to re-open the case and allow him to pursue
relief from the order. On February 13, 2012, the court entered an order denying Mr. Fox’s
motion.

       Mr. Fox appeals, stating the following issues:

       1. Whether the Probate Court should have granted the Appellant’s Rule 59
       Motion to Alter and Amend, and in the alternative to re-open the estate and
       grant relief pursuant to Rule 60.02, which relief was premised upon
       Appellant’s contention that the order at issue is void for the following reasons:
             a) The Probate Court did not have subject matter jurisdiction to
             order a former Administrator of an estate to pay money damages
             to the current Administrator and former partner, and/or
             reimburse the estate, which were allegedly caused by his
             malpractice and/or breach of fiduciary duties while serving as
             Administrator C.T.A.;
             b) The document entitled “Motion to Attribute Costs to Former
             Administrator…” seeking recovery of fees allegedly caused by the
             former Administrator was in reality a tort claim that required resort
             to a court of general jurisdiction and the filing of a complaint and
             service of process;

       2. Whether, if properly before the Court, the Order that required the former
       Administrator to pay for all fees incurred by the estate after his removal were
       necessary, had anything to do with the former Administrator’s actions, and/or
       were duplicative of work that the current Administrator billed and collected
       from the Estate.




       5
           The order was apparently first lodged with the clerk on September 13, 2002.

                                                   -4-
The estate states the following issues on appeal:

       1. If this court sets aside and/or reopens the estate, should the administrator:
               a. Be permitted to petition the court/file suit against Mr. Fox for
               the fees and costs attributable to his defalcation prior to October
               15, 2003.
               b. Be permitted to petition the court/file suit against Mr. Fox for
               the fees and costs attributable to his defalcation after October
               15, 2003 which were waived due to the Administrator’s inability
               to locate Mr. Fox, and his desire not to further harm the innocent
               beneficiaries.

       2. Whether the Supreme Court’s condition for reinstatement requiring Mr. Fox
       to make “complete restitution to the estates, clients, complainants . . .” requires
       damages be reduced to judgment.

                                             DISCUSSION

A. Timeliness

       Although not specifically raised as an issue by either party, because Mr. Fox’s motion
sought relief pursuant to Tenn. R. Civ. P. 59 and 60.02 relating to the October 15, 2003
order, we first address the timeliness of the motion.

       Rule 59.04 provides that “a motion to alter or amend a judgment shall be filed and
served within thirty (30) days after the entry of the judgment.” Mr. Fox’s motion was filed
more than eight years after the entry of the original order and more than two months after the
order closing the estate. Mr. Fox’s motion was not timely; consequently, relief is not
available pursuant to Rule 59.

      Rule 60.02 provides that the motion “shall be made within a reasonable time.” Mr.
Fox based his motion for relief from the October 15, 2003 order in part on subsection (3).6
We have stated that “except for exceptional circumstances that might require a different rule,


       6
           Tenn. R. Civ. P. 60.02 (3) provides:

                On motion and upon such terms as are just, the court may relieve a party or the
       party’s legal representative from a final judgment, order or proceeding for the following
       reasons: . . . (3) the judgment is void


                                                  -5-
Tenn. R. Civ. P. 60.02’s reasonable time limitation does not place a time limit on the right
to challenge a judgment on the ground that it is void.” Kelso v. Decker, 262 S.W.3d 307
(Tenn. Ct. App. 2008) (quoting Pittman v. Pittman, Nos. 01-A-01-9301-CH00014, 87-077,
1994 WL 456348, at *2 (Tenn. Ct. App. Aug. 24, 1994). Because Mr. Fox contends that the
October 15, 2003 judgment ordering him to reimburse the estate is void, we will address his
contention.7

       Appellate courts review decisions dealing with Tenn. R. Civ. P. 60.02 under an abuse
of discretion standard since these requests for relief are “addressed to the trial court’s
discretion.” McCracken v. Brentwood United Methodist Church, 958 S.W.2d 792, 795
(Tenn. Ct. App. 1997); accord Henry v. Goins, 104 S.W.3d 475, 479 (Tenn. 2003);
Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993). An appellate court is not
permitted to substitute its judgment for that of the trial court under an abuse of discretion
standard. Henry, 104 S.W.3d at 479; Eldridge v. Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
Only when a trial court has “applied an incorrect legal standard, or reached a decision which
is against logic or reasoning that caused an injustice to the party complaining” is the trial
court found to have abused its discretion. State v. Stevens, 78 S.W.3d 817, 832 (Tenn. 2002)
(quoting State v. Shuck, 953 S.W.2d 662, 669 (Tenn. 1997)).

B. Post-Judgment Relief

       Mr. Fox first contends that the court’s October 15, 2003 order was void for lack of
personal jurisdiction because “there was no complaint filed, no summons issued and no
service on [him].” Mr. Fox further argues that “[a]bsent those procedural steps, the order is
void because this Court did not have jurisdiction over the Appellant.” These contentions are
without merit.

        “‘A judgment is not void merely because it is erroneous. It is void only if the court
that rendered it lacked jurisdiction of the subject matter, or of the parties, or if it acted in a
manner inconsistent with due process of law.’” Magnavox Co. of Tenn. v. Boles & Hite
Const. Co., 583 S.W.2d 611, 613 (Tenn. Ct. App. 1979) (quoting 11 Wright & Miller,
Federal Practice and Procedure § 2862); see also Henderson v. Wilson, M2009-01591-COA-
R3-CV, 2011 WL 683905 (Tenn. Ct. App. Feb. 25, 2011); Gentry v. Gentry, 924 S.W.2d
678, 681 (Tenn. 1996).

       Tenn. Code Ann. § 30-1-308 provides that “[t]he administrator, when appointed, shall
be a party to the proceedings in court, and shall be bound by any decree or order in the


        7
         We note in this regard that the trial court did not deny the motion on the basis of timeliness, but
addressed the motion on its merits.

                                                    -6-
cause.” Mr. Fox served as the Public Administrator for Wilson County and, in that capacity,
petitioned the court to administer the Ann Taylor Estate; upon his appointment he became
a party to the proceedings.8 Accordingly, the court had personal jurisdiction over Mr. Fox.

        Mr. Fox also contends that the October 15, 2003 order was void because the probate
court lacked subject matter jurisdiction to grant Mr. Robert’s Motion to Attribute Costs to
Former Administrator. More specifically, Mr. Fox asserts that “the motion sought a
monetary judgment against [him], a non-party,” and that “the claims asserted in the motion
are tort claims over which the Probate Court did not have subject matter jurisdiction.” We
disagree with the characterization of the motion and order as a separate lawsuit sounding in
tort; rather, the motion sought to recover estate funds which had been expended due to the
malfeasance of Mr. Fox.

        The administration of an estate is a procedure governed by Tenn. Code Ann. §§ 30-1-
101, et seq., which requires, among other things, marshaling of the decedent’s assets, filing
of inventory, payment of claims against the estate, and distribution to the heirs and/or
beneficiaries. The $12,173 which Mr. Fox was ordered to pay was to reimburse the estate
for time spent by the substitute administrator in attempting to get the records held by Mr. Fox
in order to prepare an inventory, in preparing the same, and in completing the orderly
administration of the estate; the time was substantiated on affidavits filed with the court. Mr.
Fox failed to turn over the records of the estate in accordance with the order; his failure to
cooperate with the court, as well as his failure to faithfully perform his duties as
administrator,9 delayed the administration and caused the estate to incur unnecessary fees.
It was within the court’s power and authority in supervising the administration of the estate
to order that he reimburse the estate for the expenses it incurred which were specifically
attributed to his malfeasance. See 2 Pritchard on Wills and Administration of Estates § 863
(“Expenses of administration, which include the allowances to the personal representative
for his own services and reasonable counsel fees . . . are as proper charges against the estate,
as for example, are funeral expenses of the decedent.”).10

        8
         The laws setting forth the duties and responsibilities of the public administrator are set forth at
Tenn. Code Ann. §§ 30-1-401, et seq.
        9
         Mr. Fox took an oath pursuant to Tenn. Code. Ann. § 30-1-111 to “faithfully perform” his duties
as administrator.
        10
           Although not directly on point, we are persuaded that Tenn. Code Ann. § 30-1-113 also provides
authority for the court to issue October 15, 2003 order. That statute sets forth the following procedure for
turning over an estate to a new representative:

        The court shall order the petitioner to pay over and deliver to the new personal representative the
                                                                                               (continued...)

                                                    -7-
       We find no abuse of discretion by the trial court in denying Rule 60.02 relief.

        Mr. Fox further contends that the fees awarded were “excessive and not related to
anything the Appellant did or did not do.” The motion was accompanied by the affidavit of
Mr. Roberts as well as by an exhibit detailing each of the costs and fees incurred by the estate
due to Mr. Fox’s actions, which totaled $12,173; the certificate of service verifies that a copy
of the motion was served on Mr. Fox’s attorney. The record does not show that Mr. Fox filed
a response to this motion. After a hearing on the matter, the court, “based upon the
pleadings, statements of counsel and the record as a whole,” ordered Mr. Fox to pay the
$12,173 requested in the motion, which the court stated were “those costs solely attributable
to his malfeasance and defalcation . . . as evidenced by the Exhibit A to Petitioner’s Motion
by affidavit of counsel and the related chart showing each such cost.” A copy of the order
was likewise served on Mr. Fox’s attorney.

        Mr. Fox had the opportunity to respond to the motion and be heard; he chose not to
do so. “The broad power granted by Rule 60.02(5) is not to be used to relieve a party from
free, calculated and deliberate choices he has made.” Underwood, 854 S.W.2d 94, 98 (Tenn.
1993). Accordingly, Tenn. R. Civ. P. 60.02 was not available to provide relief for Mr. Fox’s
failure to respond to the motion or to participate in the hearing on the motion. We have
reviewed the exhibit attached to Mr. Robert’s affidavit; the amount assessed by the trial court
is supported by the exhibit.

C. Issues of the Appellee

         Our disposition of the issues raised by Mr. Fox pretermitts our consideration of the
first issue raised by the Estate; the second issue raised by the Estate is not properly before us.




       10
            (...continued)
       balance of money, property, and effects in the petitioner’s hands; and, unless the payment and
       delivery are made in pursuance of the order, the court may order an execution against the petitioner
       ...

Tenn. Code Ann. § 30-1-113.

                                                   -8-
                               CONCLUSION

For the foregoing reasons, the judgment of the court below is affirmed in all respects




                                   __________________________________
                                   RICHARD H. DINKINS, JUDGE




                                      -9-
