                 IN THE COURT OF APPEALS OF TENNESSEE
                             AT KNOXVILLE
                            Assigned on Briefs November 8, 2012

            IN RE ESTATE OF JAMES SHEPERD1 SMITH, DECEASED

                  Appeal from the Chancery Court for Hamilton County
                    No. 10-P-474   Jeffrey M. Atherton, Chancellor


              No. E2012-00995-COA-R3-CV-FILED-DECEMBER 27, 2012


Sonya Wyche (“the Putative Daughter”) was named as one of the heirs of James Sheperd
Smith, deceased (“the Deceased”), in the petition for letters of administration filed by James
B. Smith and Jacqueline Smith Gunn (collectively “the Adminstrators”). The Administrators
filed a “Motion to Determine Identity of Heirs” approximately 13 months after the Deceased
died. The court held that the Putative Daughter’s claim as a child born out of wedlock was
not perfected in a timely fashion. The court also held that the Putative Daughter did not carry
her burden of proving that the Administrators, by naming her as an heir in the petition, acted
with intent to trick her into not filing a timely claim. The Putative Daughter appeals. We
affirm.


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

C HARLES D. S USANO, J R., J., delivered the opinion of the Court, in which D. M ICHAEL
S WINEY, J., joined. J OHN W. M CC LARTY, J., not participating.

Whitney Durand, Chattanooga, Tennessee, for the appellant, Sonya Wyche.

Jennifer Kent Exum and G. Michael Luhowiak, Chattanooga, Tennessee, for the appellee,
the Estate of James Sheperd Smith.

                                              OPINION




        1
        The petition spells the middle name “Shepherd.” All the briefs and the order on appeal delete the
“h” from the spelling of the middle name. We assume the parties are now using the correct spelling.
                                              I.

       The Deceased died May 11, 2010. At the time of his death, he owned one or more
businesses along with some rental properties. The value of his assets appears to have been
between $350,000 and $500,000. On August 24, 2010, the Administrators filed a petition
for intestate administration of the Deceased’s estate. “Sonya Wych[e], Adult Daughter,
Address unknown” was listed as one of the heirs, along with the Administrators, and two
other brothers. The petition was granted and letters of administration were issued
immediately. Notice to creditors was published on August 27, 2010 and September 3, 2010.

       On June 22, 2011, the Administrators filed their “Motion to Determine Identity of
Heirs.” The motion alleged that due to uncertainty of parentage of some of the children who
claimed to be heirs, counsel for the estate had asked all of the persons claiming to be heirs
to supply proof of parentage and that not all of the alleged heirs had supplied the requested
documentation. The court referred the motion to the clerk & master for a hearing. The
hearing was delayed several times, once because of the filing of a motion to withdraw of
counsel for the Daughter upon the ground that counsel “has been unable to secure her prompt
cooperation in this cause.” The motion is styled as a “Motion to Withdraw as Counsel for
Potential Heir.” Counsel was allowed to withdraw.

        Substitute counsel filed notice on February 28, 2012, that the Putative Daughter had
filed a separate action to establish paternity. A copy of the complaint and its exhibits were
filed as attachments to the notice. The exhibits include an obituary listing the Putative
Daughter as one of the Deceased’s children. Another exhibit is a copy of a DNA analysis
conducted on the Putative Daughter and one of her first cousins, which analysis states it “is
inconclusive as to biological relationship” between the Putative Daughter and her cousin.

       When the matter came on for hearing before the clerk and master, he declined to
accept any proof on the issue of whether the estate was estopped to contest the Putative
Daughter’s right to inherit as an heir. After hearing considerable argument, the clerk and
master stated: “We don’t need to go any further on this.” Later in the hearing, he explained:

              Under the law, the way the law stands as of right now, I have to
              do a master’s report to the court that she is not an heir because
              this process was started long after the one-year statute of
              limitations; okay? Now, if the judge agrees with you, you may
              have a full-blown hearing on it. . . .

                                          *   *     *



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              . . . . I’ll do a report to the court that the other heirs are the sole
              heirs.

The clerk and master’s report states that the Putative Daughter’s “claim is barred by the
untimely filing of her cause of action for paternity more than one year from the date of [the
Deceased’s] death.” The Putative Daughter filed objections to the clerk and master’s report
based upon several grounds, including equitable estoppel and judicial estoppel. She argued
that the clerk and master erred in not accepting proof on her assertions of estoppel.

        The trial court held an evidentiary hearing limited to the issue of whether the
Administrators are estopped to assert the untimeliness of the Putative Daughter’s claim. The
Putative Daughter called, as her first witness, James B. Smith. He testified that he did not
know if the Putative Daughter was in fact the Deceased’s child. He included her as an heir
because she claimed to be a child of the Deceased. Shortly after the Deceased’s death, the
putative siblings, including the Putative Daughter and the mother to the two younger brothers
met to discuss the administration of the estate. They came to a preliminary agreement that
the Putative Daughter would receive one of the rental houses, subject to showing that she was
in fact the Deceased’s child. At the Putative Daughter’s request, he gave her one rent check
but did not give her another one when she failed to come forward with documentation of her
parentage. In November 2010, there was a meeting between counsel for the estate and the
Putative Daughter. Mr. Smith did not attend that meeting. It was his understanding from
emails and other correspondence that the meeting was to make the Putative Daughter aware
that she would not be included among the heirs if she did not submit proof of parentage. The
Administrators told her that she would need a lawyer.

       The Putative Daughter was the next witness. She testified that the Deceased admitted
to numerous family members, including the Administrators, that she was his daughter.
According to the Putative Daughter, he bought her a car on her 16th birthday and took her
to numerous family reunions where he introduced her as his daughter. The Putative Daughter
acknowledged that she attended a meeting with counsel for the estate in November 2010, but
claimed to have called the meeting out of concern that the inventory was incomplete. She
denied being asked at that meeting to supply documentation of her parentage. When asked
whom her birth certificate identified as her parents, she testified that no father was identified
and that she did not know that until late 2011.

        Jacqueline Gunn was the only witness called by the estate. She testified that, during
the first preliminary meeting, it was made clear to the Putative Daughter that she would not
get the rental house unless she proved her parentage. Ms. Gunn was at the November 2010
meeting. She testified that the Putative Daughter was told to produce a birth certificate as
proof of parentage, as all siblings had done. She also testified that after the November 2010

                                                -3-
meeting, she received a voice message from the Putative Daughter about the November
meeting. According to Ms. Gunn, the Putative Daughter was upset about being told to
produce a birth certificate.

     After hearing the proof, the court announced from the bench the following findings,
among others:

             . . . . It’s the undisputed testimony of [the Putative Daughter]
             that she was born out of wedlock, and there is no proof of any
             type of paternity or legitimation proceeding prior to the passing
             of [the Deceased].

             This is not the paternity hearing, but this hearing has to do with
             whether or not [the Putative Daughter] should be barred from
             pursuing a claim as an heir. At the outset, the Court will simply
             say this. The Court respectfully disagrees with . . . counsel for
             [the Putative Daughter] and holds as a conclusion of law that the
             petition for intestate administration is not a claim nor the
             assertion of a claim as envisioned by the Glanton v. Lord case
             183 S.W.3d 391 as she did not petition the court to become one
             of the administrators.

             Glanton notes that nonmarital children are required to assert the
             right to inherit. . . . Therefore, . . . this Court holds that the Clerk
             and Master ruled correctly concerning whether or not a claim or
             an assertion of the right to inherit was timely filed.

             However, the statute of limitations . . . may be tolled under the
             circumstances where judicial estoppel or equitable estoppel is
             shown. . . .

             That being said, at issue is [the Putative Daughter’s] contention
             that the relevant [willful] misstatement of fact or false
             representation or concealment . . . is in the Petition . . . where it
             refers to [the Putative Daughter] as an adult daughter of [the
             Deceased] with an unknown address. The Court accepted
             evidence to determine if, by presentation of proof, [the Putative
             Daughter] might overcome the persuasive finding in [Scaife v.
             Roberson, No. E2002-02666-COA-R3-CV, 2003 WL 1453061
             (Tenn. Ct. App. E.S., filed March 21, 2003) ], that a petition is

                                               -4-
a preliminary form that must be completed before an
administrator can be appointed and, as such, may be completed
with incomplete or inaccurate information due to the lack of
time, authority, or resources to discover all the relevant facts.
The burden was upon [the Putative Daughter].

. . . [T]he Court heard that some negotiations took place
concerning [the Putative Daughter’s] potential receipt of estate
assets . . . . [I]t was particularly interesting that after conveying
one rental check from property that was apparently to be
designated to [the Putative Daughter], no additional checks were
paid. There was no proof of any argument. There was no proof
of any objection to the discontinuation of payments. But rather,
there was silence . . . .

The Court, of course, received testimony from [the Putative
Daughter]. She confirmed that she was born out of wedlock.
She never saw her own birth certificate that omits her father’s
name until late 2011. The Court has some problems with that.
...

In any event, in October 2010, [the Putative Daughter] was
provided a copy of the pleadings as is reflected in [the trial
exhibits]. By November 2010, a meeting of some type took
place. . . . [T]he exact nature of that meeting may be in dispute
but what . . . provides the Court some direction is the e-mail that
came in without objection . . . being the e-mail of November 8,
2010, and the line . . . indicating, let her know she will need a
lawyer as we want paternity if she’s not ready to settle with her
house.

. . . . That is direct reflection concerning the mindset of an
administrator or administratrix in this case. . . . Did the content
of that statement in [the petition] represent an intention or
willful misstatement of fact that was intended to lull . . . [the
Putative Daughter] . .. into not feeling obligated to protect her
own rights?

And, again, I think that line in and of itself reflects the mindset
of the [A]dministrators and certainly does not reflect that some

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                 type of deceptive act or deceptive statement had taken place at
                 the time of the filing of the petition. Certainly, the concerns
                 mentioned in the e-mail of November 8, 2010 are inconsistent
                 with [the Putative Daughter’s] testimony concerning the
                 contents of the meeting and the conversations of the meeting
                 which took place on November 10th, 2010.

                 Ultimately, the Court finds that the [Putative Daughter] had not
                 carried her burden of proof. The court finds that the statement
                 in the petition does not represent a willful misstatement of fact
                 to the extent required to establish judicial estoppel or equitable
                 estoppel. And, in all candor, the Court would note the petition
                 is more of a notice to the world that they need to stand up and
                 act and it is not an instruction to someone that they might sit
                 back upon their own rights.

The court entered an order incorporating its findings as well as the additional finding that the
Putative Daughter did not file any “assertion of a right to inherit” until well more than a year
after the Deceased died. The Putative Daughter filed her notice of appeal from the order
denying her status as an heir.

                                                      II.

       The Putative Daughter raises issues as to whether the court erred in finding that the
petition deceived her into believing that she did not need to file a claim.2

                                                      III.

       Our review of a trial court’s findings of fact after a bench trial is de novo, with a
presumption that the findings are correct unless the evidence preponderates against those
findings. Tenn. R. App. P. 13(d); In re Angela E., 303 S.W.3d 240, 246 (Tenn. 2010).
“Questions of law . . . are reviewed de novo with no presumption of correctness.” Id.




        2
         The Putative Daughter also lists, as an issue, whether the order she is appealing from is final. The
Estate does not challenge the finality of the order. It appears to us that the order falls within the parameters
of Tenn. Code Ann. § 30-2-315 (b)(2007). The statute allows an appeal from an order granting or denying
a claim. Id.

                                                      -6-
                                                        IV.

       The Putative Daughter’s arguments all reduce down to assertions that the trial court
(1) misread our opinion in Scaife, and (2) erred in finding that the statement made in the
petition listing her as a child of the Deceased was not made with intent to deceive her into
thinking she did not need to file a claim.3

        The Putative Daughter asserts that the trial court should not have applied our opinion
in Scaife to the facts of the present case. In Scaife, Adrian Scaife was listed as a daughter
in the initial petition for letters of administration. 2003 WL 1453061 at *1. That petition
was never granted. Id. In an amended petition, she was listed as an heir, but not specifically
as a child. Id. She was later sent a letter explaining that in order to inherit she must establish
paternity within the four months allowed for creditor to file claims against the estate. Id.
She did not. In an attempt to avoid the time-bar, Ms. Scaife made the argument that “she
should be entitled to rely upon the sworn statement made in the Amended Petition, rather
than on the unsworn assertions set forth in the Notice to Creditors letter.” Id. at *4. We
considered whether the estate was estopped from raising or relying on the statute of
limitations to deny her status as a child heir. Id.

        We found two insurmountable problems with the putative child’s argument. First, “a
petition is ‘a preliminary form that must be completed before an administrator can be
appointed’ and, as such, may be completed with incomplete or inaccurate information due
to lack of ‘time, authority, or resources to discover all the relevant facts.’ ” Id. (quoting trial
court). Therefore, listing of someone as an heir in the petition does not rise to the level of


        3
            It is clear that

                    a child born out of wedlock, whose paternity was not adjudicated prior to
                    the death of the father, can establish the right to inherit by intestate
                    succession by asserting that right against the estate of the deceased owner
                    of the property in which an interest is claimed within the time allowed for
                    creditors to file claims against the estate and by establishing paternity by
                    clear and convincing proof.

Bilbrey v. Smithers, 937 S.W.2d 803, 806 (Tenn. 1996). Creditors must file a claim within four months of
the notice to creditors, or, if they received no notice, within a year of death. See In re Estate of Bennett, No.
E2004-02007-COA-R3-CV, 2005 WL 2333597 at * 3-5 (Tenn. Ct. App. E.S., filed Sept 23, 2005)(discussing
the meaning of Tenn. Code Ann. §§ 30-2-307 and 310 (2002)). If the right to inherit is not asserted within
this time-frame it is lost, absent proof that the time-bar is tolled or that the estate is estopped to assert it. It
is undisputed that the Putative Daughter did not file her claim either within four months from the notice to
creditors or one year from the date of the Deceased’s death.


                                                        -7-
a “willful misstatement of fact, or perjury” needed to give rise to estoppel. Id. (citing
definition of judicial estoppel provided in Woods v. Woods, 638 S.W.2d 403, 406 (Tenn. Ct.
App. 1982)). Second, even if Ms. Scaife could have initially relied upon the statements in
the amended petition, she received a letter informing her of the need to establish paternity
while she still had time to file a claim. Id. at 5. Thus, she “could not have justifiably relied
upon the statements in the Amended Petition and the accompanying affidavits” to toll the
statute of limitations. Id.

       Any question as to whether the trial court misinterpreted or misapplied Scaife is a
question of law that we consider de novo. We hold that the trial court did not misinterpret
or misapply Scaife. The court did not treat our characterization of the petition in Scaife as
binding in all circumstances. It gave the Putative Daughter an opportunity to show that, in
this particular case, the Administrators knew she was a child of the Deceased and listed her
as a child, all the while knowing that they would later say she was not. The trial court
concluded that the petition in this case, as with the petition in Scaife, was a preliminary
statement made subject to the facts to be developed in the probate case. The evidence does
not preponderate against the trial court’s factual finding that the petition was not made with
an intent to deceive.

        We further hold, by analogy to Scaife, that the Putative Daughter could not have
justifiably relied on the petition, even if it contained an intentional misrepresentation. The
trial court did not articulate a specific finding of fact as to justifiable reliance; therefore, we
must make our own finding based on the preponderance of the evidence. Kesterson v.
Varner, 172 S.W.3d 556, 566 (Tenn. Ct. App. 2005). The evidence preponderates in favor
of finding that the Putative Daughter knew no later that November 2010 that she was not
going to be treated as an heir unless she proved paternity. The trial court found her testimony
to the contrary to be problematic in light of documents concerning the purpose of the
meeting. Moreover, Ms. Gunn testified consistent with the documentation that the Putative
Daughter was informed in November 2010 she would not be treated as an heir unless she
established that she was a child of the Deceased. November 2010 was within the critical
four-month period for filing a claim after the notice to creditors and well within one year of
the Deceased’s death.

                                                V.

      The judgment of the trial court is affirmed. Costs on appeal are taxed to the appellant,
Sonya Wyche. This case is remanded to the trial court, pursuant to applicable law, for further
proceedings consistent with this opinion.




                                                -8-
      _______________________________
      CHARLES D. SUSANO, JR., JUDGE




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