                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                          Assigned on Briefs August 20, 2013

   DONALD E. BLACKBURN, ET AL. v. GEORGE BLACKBURN, ET AL.

             Direct Appeal from the Chancery Court for Fayette County
                    No. CH-13880     William C. Cole, Chancellor


               No. W2012-00058-COA-R3-CV - Filed October 22, 2013


Defendants challenge only the Chancery Court’s subject matter jurisdiction to enter an order
regarding a 444 acre farm located in Fayette County. For the following reasons, we find the
Chancery Court acted with subject matter jurisdiction. The jurisdiction of the Chancery
Court, therefore, is affirmed.

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

A LAN E. H IGHERS, P.J., W.S., delivered the opinion of the Court, in which D AVID R. F ARMER,
J., joined, and H OLLY M. K IRBY, J., concurred in result only.

George D. Blackburn, Dilley, Texas, pro se

Jerry H. Schwartz, Memphis, Tennessee, for the appellant, Betty Blackburn

Julie C. Bartholomew, Somerville, Tennessee, for the appellees, Donald E. Blackburn, et al
                                    MEMORANDUM OPINION 1

                               I.   F ACTS & P ROCEDURAL H ISTORY

       This appeal concerns the subject matter jurisdiction of the Fayette County Chancery
Court to enter an order regarding a 444 acre farm located in Fayette County.

        George C. Blackburn (“Decedent”), a resident of Memphis, Tennessee, died testate
on August 14, 1997. His Last Will and Testament (“Will”) was admitted to probate in the
Shelby County Probate Court on April 28, 1999. At the time of his death, Decedent owned
a 444 acre farm in Fayette County, which, through his Will, he devised as follows: a life
estate in the western one-half to his son, George D. Blackburn (“George”), a life estate in the
eastern one-half to his son, Donald E. Blackburn (“Donald”), with the remainder interest
vested equally in Decedent’s three grandsons, Donald M. Blackburn,2 Joseph P. Blackburn,
and Robert C. Blackburn.

       Apparently, prior to his death, Decedent entered into a written and recorded lease
agreement with his son, George, leasing the 444 acre farm to George for 55 years for $1.00
per year, to end at the end of the year 2047. Additionally, in 1996, Decedent’s wife, Betty
Blackburn, acting as attorney-in-fact for Decedent, executed a Quit Claim Deed to the 444
acre farm to herself. However, this property was ultimately ordered to be returned to
Decedent–i.e. his Estate. See Blackburn v. Blackburn, 63 S.W.3d 338, 344 (Tenn. Ct. App.
2001).

        On March 7, 2005, Decedent’s son, Donald, and Donald’s sons, Donald M.
Blackburn, Joseph P. Blackburn, and Robert C. Blackburn3 (collectively “Plaintiffs”), filed
a “Complaint for Declaratory Judgment, Partition and Accounting” in the Fayette County
Chancery Court. The complaint alleged, among other things, that George had excluded
Plaintiffs from the farm property and that George and Betty were committing waste on the


       1
           Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

       This Court, with the concurrence of all judges participating in the case, may affirm, reverse
       or modify the actions of the trial court by memorandum opinion when a formal opinion
       would have no precedential value. When a case is decided by memorandum opinion it shall
       be designated “MEMORANDUM OPINION,” shall not be published, and shall not be cited
       or relied on for any reason in any unrelated case.
       2
           It appears that the Will erroneously listed the grandson’s name as Donald E. Blackburn.
       3
           Donald acted as next friend of Robert C. Blackburn, a minor.

                                                     -2-
property by selling large amounts of sand located thereon. The complaint requested that the
property be partitioned, that the Quit Claim Deed be removed as a cloud on Plaintiffs’ title,
and that the 55-year lease be held invalid because it was “either forged, fraudulently
obtained, or obtained by overreaching an elderly person[,]” or alternatively, that it be set
aside for lack of adequate consideration.

        On August 18, 2011, Plaintiffs filed a “Motion for Partial Summary Judgment” in the
Fayette County Chancery Court asking the court to declare the lease to George invalid.
Plaintiffs relied, in part, upon Decedent’s 1996 Response to a “Petition for the Appointment
of a Conservator” over him filed by Betty and George. In the Response, Decedent denied
leasing the property to George, he alleged that the Power of Attorney “was obtained by fraud
and deceit” and that Betty and George had “acted in concert to perpetrate a fraud” against
him regarding the Quit Claim Deed.

        On November 3, 2011, a hearing was held in the Fayette County Chancery Court on
Plaintiffs’ “Motion for Partial Summary Judgment.”4 After which, the Chancery Court
entered an order granting Plaintiffs’ motion. Specifically, the court found “no material fact
in dispute that the Lease Agreement covering the 444 acre farm . . . is invalid, unenforceable,
and ineffectual, as a matter of law[.]” On December 5, 2011, George and Betty, acting pro
se,5 filed a “Motion to Reconsider Order on Partial Summary Judgment” as well as a
premature Notice of Appeal to this Court.

        On January 25, 2012, George and Betty filed a “Combined Motion . . . of Defendants
to Have Widow’s Elective Share Set Aside by Chancery and Awarded to Betty Blackburn.”
George and Betty claimed that Donald, as executor of Decedent’s Estate, had failed to award
her an elective share, and they prayed for the court to award her an elective share from the
western one-half of the property in which George held a life estate under the Will. The
following day, the Chancery Court entered an “Order Granting Injunction” enjoining the
parties “from engaging in any activities on the subject 444 acre farm which constitute waste,
including but not limited to, the removal of sand, dirt, or gravel, the cutting of timber, or any
other activity thereon that permanently damages same, pending the further orders of the
Court.” In March of 2012, the Chancery Court also entered an “Interlocutory Order”
allowing Donald to “enter and enjoy the use of the entire 444 acre farm without interference
by any Defendant” “pending the announcement and entry of a final decree in this cause[.]”




       4
           No transcript of this hearing is included in the record.
       5
           Betty is represented by counsel on appeal; however, George remains self-represented.

                                                       -3-
        A trial was held on March 22, 2012,6 after which the Chancery Court entered a “Final
Order Granting Judgment.” The Chancery Court found that George and Betty had committed
waste on the farm property and it awarded the remaindermen–Donald M. Blackburn, Joseph
P. Blackburn, and Robert C. Blackburn–a $750,000.00 judgment. It also found that George
and Betty had wrongfully and unlawfully excluded Donald from the farm property for a 15-
year period, and in lieu of a monetary judgment, it awarded Donald “the full, sole, exclusive
and unobstructed possession of said farm for the next ensuing 15 year period.” George and
Betty then filed a timely second Notice of Appeal to this Court.7 Pursuant to an Order of this
Court directing the entry of a final judgment, the Chancery Court entered an “Amended Final
Order Granting Judgment” on April 12, 2013, adjudicating Plaintiffs’ requests regarding the
Quit Claim Deed and for partition of the farm property. Specifically, the Chancery Court
found the requests moot as Betty, pursuant to an Order of the Shelby County Probate Court,
had reconveyed the farm property to Decedent’s Estate, and as the court had granted a life
estate in the eastern one-half of the property to Donald and a life estate in the western one-
half of the property to George, subject to the 15-year period of exclusive possession of the
whole by Donald.

                                          II.     I SSUE P RESENTED

        On appeal, George and Betty challenge only the Chancery Court’s subject matter
jurisdiction to consider Plaintiffs’ claims. For the following reasons, we find the Chancery
Court acted with subject matter jurisdiction.

                                                III.   D ISCUSSION

       According to Defendants’ appellate briefs,8 on October 6, 1999, Decedent’s widow,
Betty, filed a pro se “Petition for Elective Share, Year’s Support, Exempt Property and
Homestead” in the Shelby County Probate Court. Thereafter, according to their briefs, on
April 17, 2002, the Probate Court entered a “Consent Order for Temporary Injunction and
Award of Year’s Support.” The order purportedly enjoined George and Betty, “pending
further Orders from the Probate Court,” from removing timber from the property and from
removing sand or dirt from the property in a manner significantly different from that
exercised by them during the period from 1999 to the then-current date. They claim that the
April 17, 2002 order awarded Betty $25,000 from the estate to settle her claim, as surviving

       6
           No trial transcript is included in the record.
       7
        This Court granted Appellants George and Betty numerous extensions to comply with the
Tennessee Rules of Appellate Procedure.
       8
           George and Betty filed identical appellate briefs with the exception of the Conclusion sections.

                                                        -4-
spouse, for one year’s support, but that “[t]he Probate Court has not divided decedent’s estate
to award Appellant Betty Blackburn her elective share to date, and this matter is still
pending.”

        On appeal, George and Betty argue that the Shelby County Probate Court possessed
exclusive jurisdiction over the 444 acre farm property, and therefore, that the Fayette County
Chancery Court lacked subject matter jurisdiction to enter an order concerning the subject
property. Defendants assert two bases in support of their argument. First, they contend that
Betty’s petition for an elective share remains unsatisfied and that because “the property is
essentially the only thing of value left in the estate[,]” Betty’s elective share will likely be
satisfied through receipt of a portion of the property, itself, or from a portion of the proceeds
following a court-ordered sale of the property. Second, Defendants rely upon the order
purportedly entered by the Probate Court enjoining certain activities “pending further Orders
from the Probate Court[.]” According to Defendants, by implying that it would enter further
orders, the Probate Court “overtly and specifically exercised its exclusive jurisdiction over
the 444 acre property[.]”

        The documents relied upon by Defendants–the “Petition for Elective Share, Year’s
Support, Exempt Property and Homestead” and “the “Consent Order for Temporary
Injunction and Award of Year’s Support”–are not included in the record before this Court.
Accordingly, in determining whether the Chancery Court possessed subject matter
jurisdiction, we will not address the effect, if any, of Wife’s alleged outstanding elective
share or of the Probate Court’s alleged intention to secure exclusive jurisdiction over the
farm property. See State v. Caudle, 388 S.W.3d 273, 277 (Tenn. 2012) (“It is, of course, the
duty of an appellant to provide a record that conveys a fair, accurate, and complete account
of what transpired regarding the issues forming the basis for the appeal.”) (citations omitted).
We will simply determine whether the Chancery Court possessed jurisdiction over the
particular types of claims asserted in Plaintiffs’ complaint.9

        “‘The concept of subject matter jurisdiction implicates a court’s authority to hear and


        9
          We note that the defendants do not argue that the Chancery Court lacked jurisdiction over the
particular types of claims asserted. Instead, their argument that the Chancery Court lacked subject matter
jurisdiction is based solely on the alleged prior and continuing jurisdiction of the Probate Court, of which
proof is deficient. Although not raised by the defendants, because subject matter jurisdiction may be raised
by the appellate court sua sponte on appeal, we find it appropriate to consider whether the Chancery Court
possessed jurisdiction over the claims asserted. See Wilken v. Wilken, No. W2012-00989-COA-R3-CV,
2012 WL 6727197, at *4 (Tenn. Ct. App. Dec. 27, 2012) (“[T]he issue of subject-matter jurisdiction may
be raised at any time during the proceedings, by the parties or by the court. A court may raise the issue of
subject-matter jurisdiction sua sponte, even where no party objects.”) (citations omitted); County of Shelby
v. City of Memphis, 211 Tenn. 410, 411, 365 S.W.2d 291 (Tenn. 1963).

                                                    -5-
decide a particular type of case.’” State ex rel. Whitley v. Lewis, 244 S.W.3d 824, 830
(Tenn. Ct. App. 2007) (quoting White v. State ex rel. Armstrong, No. M1999-00713-COA-
R3-CV, 2001 WL 134601, at *2 (Tenn. Ct. App. Feb.16, 2001)). “A court must have subject
matter jurisdiction over a matter for the matter to be adjudicated.” Tenn. Envtl. Council v.
Water Quality Control Bd., 250 S.W.3d 44, 55 (Tenn. Ct. App. 2007) (citing Meighan v.
U.S. Sprint Commc'ns Co., 924 S.W.2d 632, 639 (Tenn. 1996); Cashion v. Robertson, 955
S.W.2d 60, 63 (Tenn. Ct. App. 1997)). In the absence of subject matter jurisdiction, a court’s
order is not valid or enforceable. Whitley, 244 S.W.3d at 830.

        Tennessee courts derive their subject matter jurisdiction from the state constitution
or from legislative acts. Osborn v. Marr, 127 S.W.3d 737, 739 (Tenn. 2004). Whether
subject matter jurisdiction exists in a particular case depends upon the nature of the cause of
action and the relief sought. Benson v. Herbst, 240 S.W.3d 235, 239 (Tenn. Ct. App. 2007)
(citing Landers v. Jones, 872 S.W.2d 674, 675 (Tenn. 1994)). Therefore, when a court’s
subject matter jurisdiction is challenged, the first step is to ascertain the gravamen or nature
of the case, and then we must determine whether the Tennessee Constitution or the General
Assembly has conferred on the court the power to adjudicate cases of that sort. Id. “Courts
may not exercise jurisdictional powers that have not been conferred on them directly or by
necessary implication.” Osborn, 127 S.W.3d at 739 (citing First Am. Trust Co. v.
Franklin–Murray Dev. Co., 59 S.W.3d 135, 140 (Tenn. Ct. App. 2001); Dishmon v. Shelby
State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App. 1999)). “‘[W]hen an appellate court
determines that a trial court lacked subject matter jurisdiction, it must vacate the judgment
and dismiss the case without reaching the merits of the appeal.’” Id. at 741 (quoting
Dishmon, 15 S.W.3d at 480). The determination of whether subject matter jurisdiction exists
is a question of law, and therefore, our review is de novo, without a presumption of
correctness. Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000) (citing Nelson
v. Wal-Mart Stores, Inc., 8 S.W.3d 625, 628 (Tenn. 1999)).

       Plaintiffs’ “Complaint for Declaratory Judgment, Partition and Accounting” filed in
the Fayette County Chancery Court sought the following: a declaratory judgment that both
the Quit Claim Deed to Betty and the lease to George are null and void and, therefore, that
they are stricken as clouds on title; a partition or sale of the farm property;10 an accounting
of income derived from the property since Decedent’s death and a monetary judgment based
on that accounting; a finding of waste on the property by Defendants; an accounting for all
equipment, machinery and items passing under the Will; and an injunction against selling
“any sand, soil, or hunting rights or other assets of the farm[.]” We address the chancery
court’s jurisdiction to adjudicate these claims below.


        10
           Plaintiffs’ partition claim was rendered moot; therefore, we will not address the chancery court’s
jurisdiction with regard to this claim.

                                                    -6-
       Chancery Court is a court of general jurisdiction. In re D.Y.H., 226 S.W.3d 327, 330
(Tenn. 2007). “The chancery Court has all the powers, privileges and jurisdiction properly
and rightfully incident to a court of equity.” Tenn. Code Ann. § 16-11-101.

                                A. Declaratory Judgment

       “A declaratory judgment is proper in chancery [court], but only if chancery originally
could have entertained a suit of the same subject matter.” Zirkle v. City of Kingston, 296
S.W.2d 356, 363 (Tenn. 1965) (citing Gibson, Suits in Chancery § 36, n.62 (5 th ed. 1955)).
Here, Plaintiffs’ sought a judgment declaring the lease and the Quit Claim Deed invalid,
claiming they were fraudulently obtained, and removing such as clouds on the title.

       Chancery courts have exclusive jurisdiction of suits to set aside fraudulent
conveyances, 3 Tenn. Prac. Rules of Civil Procedure Ann. § 2:4 (4 th ed.) (citing Tenn.
Code Ann. § 29-12-101), and “suit[s] to remove a cloud on title, [are] one of a class of suits
in which courts of chancery historically have enforced their jurisdiction.” Huggins v.
Emory, 484 S.W.2d 351, 353 (Tenn. 1972) (citing Johnson v. Cooper, 10 Tenn. 524 (1831)).
Because the underlying claims on which the declaratory judgment was sought could have
been brought in the Chancery Court, we find the Chancery Court properly exercised subject
matter jurisdiction over the declaratory judgment aspect of this case.

                               B. Accounting & Injunction

       “The Chancery Court of Tennessee has the inherent jurisdiction of ‘all cases of an
equitable nature[.]’” Ferguson v. Moore, 348 S.W.2d 496, 498 (Tenn. 1961) (quoting Lake
v. McDavitt, 81 Tenn. 26, 30 (Tenn. 1884)). “Among the well established heads of this
inherent equity jurisdiction are suits involving ‘trusts,’ or for an ‘accounting,’ or for a
‘discovery’ or ‘injunction.’” Id. (citing 1 Gibson’s Suits in Chancery (5 th ed.), sec. 29).
Clearly, the chancery court possessed subject matter jurisdiction to adjudicate Plaintiffs’
claims for an accounting and for an injunction.




                                             -7-
                                           C. Waste11

        In their “Complaint for Declaratory Judgment, Partition and Accounting,” Plaintiffs
claimed that George and Betty were “committing waste on the real property to the detriment
of the remaindermen by selling off sand in large amounts by use of a number of trucks[.]”
(V1, 9). Waste is normally a tort action, Chapman, 341 S.W.2d at 395, and the chancery
court typically lacks jurisdiction to award unliquidated damages in a tort action. See Indus.
Dev. Bd. of City of Tullahoma v. Hancock, 901 S.W.2d 382, 383 (Tenn. Ct. App. 1995).
However, waste was not the sole claim raised in Plaintiffs’ complaint. As stated above, it
sought an injunction, a partition, an accounting, and to remove a cloud on Plaintiffs’
title–remedies which are inherently equitable. See Ferguson, 348 S.W.2d at 498; Hancock,
901 S.W.2d at 383. “When a court of chancery takes jurisdiction of a case under its inherent
jurisdiction it may decide all issues involved in the matter in order to prevent a multiplicity
of actions.” Hancock, 901 S.W.2d at 384 (citing Bryson v. Bramlett, 204 Tenn. 347, 321
S.W.2d 555 (1958)); see also Dickey v. Nichols, No. 01-A-01-9007-CH00260, 1991 WL
169618, at *3 (Tenn. Ct. App. Sept. 4, 1991) (stating that the chancery court had jurisdiction
over a waste claim). Due to the primarily equitable nature of the case, we find the chancery
court properly exercised subject matter jurisdiction over Plaintiffs’ related claim of waste.


                                        IV.    C ONCLUSION


        For the aforementioned reasons, we find the Chancery Court acted with subject matter
jurisdiction. The jurisdiction of the Chancery Court, therefore, is affirmed. Costs of this
appeal are taxed to Appellants, George D. Blackburn and Betty Blackburn, and their sureties,
for which execution may issue if necessary.




                                                       _________________________________
                                                       ALAN E. HIGHERS, P.J., W.S.




       11
         Our Supreme Court has approved of the following “waste” definition: “‘an unreasonable or
improper use, abuse, mismanagement, or omission of duty touching real estate by one rightfully in
possession, which results in its substantial injury.’” Chapman Drug Co. v. Chapman, 341 S.W.2d 392, 396
(Tenn. 1960) (quoting Thayer v. Shorey, 287 Mass. 76, 191 N.E. 435, 437, 94 A.L.R. 307).

                                                 -8-
