                   IN THE COURT OF APPEALS OF TENNESSEE
                              AT KNOXVILLE
                                          July 9, 2012 Session

                 IN RE ESTATE OF WILLIE JUANELL CAMPBELL

                    Appeal from the Chancery Court for McMinn County
                     Nos. P-307 & 23,667   Jerri S. Bryant, Chancellor


                    No. E2011-02765-COA-R3-CV-FILED-JULY 31, 2012


In this appeal, numerous beneficiaries under a will challenge the trial court’s order awarding
attorney’s fees of $9,024.75 out of the funds of the estate to another beneficiary who is their
adversary. At an earlier time, the court had entered an order setting the attorney’s fees of that
beneficiary at $34,669.25 without specifying who was responsible for the payment of those
fees. On the motion of that beneficiary, the court granted a new trial on the subject of
attorney’s fees. When the matter came on for the “new trial,” the court announced that it
would listen to argument but would not receive substantive evidence on the subject.
Following that “hearing,” the court awarded the fees now before us. The court’s order does
not articulate any findings with respect to whether the attorney’s services were reasonable,
necessary or benefited the estate. The “challenging” beneficiaries filed a notice of appeal.1
We vacate the order awarding attorney’s fees and remand to the trial court with instructions
to conduct an evidentiary hearing and enter an order on attorney’s fees complying with Tenn.
R. Civ. P. 52.01.

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

C HARLES D. S USANO , J R., J., delivered the opinion of the Court, in which H ERSCHEL P.
F RANKS, P.J., and D. M ICHAEL S WINEY, J., joined.

H. Wayne Grant, Chattanooga, Tennessee, for the appellants, Oletha Campbell Parris,
William Dennis Campbell, Beverly Millsaps and Melissa Mashburn.

Sandra Bucknor, Riceville, Tennessee, appellee, pro se.


        1
          We have previously entered an order recognizing that the notice of appeal was not filed on behalf
of the estate but rather on behalf of the challenging beneficiaries; therefore the “[e]state itself . . . remains
an appellee in this appeal.” The estate has notified the court that it will not participate in this appeal.
No appearance on behalf of the appellee, Estate of Willie Juanell Campbell.


                                         OPINION

                                              I.

        Willie Juanell Campbell (“the Deceased”) died on November 28, 2006. Her son,
William Dennis Campbell, and daughter, Oletha Campbell Parris (“the Personal
Representatives”), were issued letters testamentary to act as the personal representatives of
the estate. The Deceased was predeceased by a son, who was the father of three daughters,
Beverly Millsaps, Melissa Mashburn and Sandra Bucknor. Soon after the estate was opened,
Ms. Bucknor retained attorney S. Randolph Ayres to represent her interests. The Deceased’s
living children and the three children of the deceased son are all beneficiaries under the will
of the Deceased.

        Approximately six months after the estate was opened, the Personal Representatives,
along with the Deceased’s grandchildren, Millsaps and Mashburn (collectively “the
Plaintiffs”), filed a separate action (“the partition action”) alleging that a 220 acre farm
passed to all the beneficiaries, including Ms. Bucknor, by undivided interests and that it was
in the best interest of all beneficiaries to sell the farm as a whole and divide the proceeds.
Ms. Bucknor is the sole defendant (“the Defendant”) in the partition action. The Defendant,
by counsel, answered the petition by admitting that the sale should be conducted but stated
that an auctioneer other than the one chosen by the Plaintiffs should conduct the auction. The
Defendant coupled a counterclaim with her answer, in which she alleged that the Personal
Representatives, acting under a power of attorney, had spent approximately $125,000 of the
Deceased’s funds prior to her death for which they had not fully accounted. The
counterclaim demanded an accounting and sought reimbursement of attorney’s fees that the
Defendant had incurred.

        From that point forward, the litigation grew more contentious. The trial court
consolidated the estate proceeding and the partition action and ordered mediation. Mediation
was unsuccessful. The trial court appointed the clerk and master as special master to conduct
hearings. The clerk and master conducted four separate hearings and filed reports concerning
all of them. The reports were all approved by the trial court. The report filed November 2,
2009, which covered most of the substantive issues in the consolidated cases, was the next
to last report filed. In it, the clerk and master stated:




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              In conclusion, the C&M submits that there was no smoking gun
              found with regard to the Personal Representatives/Former
              Fiduciaries’ alleged mishandling or misuse of Estate Funds.
              Was everything done perfectly? Unfortunately, no it was not;
              mistakes were made. However, it does appear that Oletha Parris
              and Dennis Campbell made a sincere effort to care for their
              parents, and their Estate.

              This is clearly a situation where the domino [effect] took over,
              and continued on to the point of causing irreparable harm to this
              family and their inheritance. The failure and/or lack of
              communication caused doubt and suspicion to flourish, which
              led to actions being questioned. Allegations and accusations
              sparked frustration and possible resentment; thus, making
              effective communication and cooperation between the parties
              difficult, if not impossible. This family dispute is extremely
              unfortunate and, quite frankly, could have been avoided.

(Emphasis in original.)

         Shortly after the clerk and master filed her report, the Defendant’s counsel filed a
motion to withdraw and to impose a lien on any proceeds distributed to the Defendant. In
support of his motion, counsel filed his own affidavit and an itemized bill which divided the
time spent into three categories: probate, property, i.e., the partition action, and accounting,
i.e., the counterclaim. His affidavit states that the time spent was reasonable and necessary.

        The trial court granted counsel’s request to withdraw and impose a lien in an order
entered December 9, 2009. That order contained two additional rulings that are of interest
in this appeal. The first concerns ownership of the funds in an AmSouth joint bank account.
The court found that “the account is in fact a joint account with the right of survivorship to
[the Personal Representatives].” The court further found, however, that $5,000 in that
account “are estate funds” because they were deposited into the account by the Personal
Representatives from the Deceased’s personal funds shortly before her death. The second
ruling of interest concerns Personal Representative Dennis Campbell’s request for
reimbursement of expenses allegedly paid on behalf of the Deceased prior to her death. The
court denied the request, stating:

              Upon review and consideration of the request of Dennis
              Campbell for reimbursement for expenses previously paid on
              behalf of Ms. Campbell, prior to her death, in the amount of

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               $4,080, initially filed with the court on 6/16/09 and the
               Exception filed thereto by Attorney Ayres on 6/25/09, the court
               finds and it is hereby ORDERED that the claim of Mr.
               Campbell was not properly nor timely filed with the court . . . .

(Capitalization and emphasis in original.) The court’s order also awarded the clerk and
master a fee in the amount of $5,150.63 and held the Defendant liable for 95% of that fee,
or $4,893.10.

       The record indicates that a trial was conducted in this matter on August 1, 2011, but
the record contains no transcript of the trial testimony. It further appears that the Defendant
called her former attorney as a witness to testify at that trial. The trial court entered an order
on September 6, 2011, in which it ruled on the issues at trial. The court ordered the estate
closed and awarded the attorney’s fees of the Defendant in the amount of $34,669.25,
without specifying which of the parties were responsible to reimburse the Defendant. The
reasons the court gave for allowing the fees were that (1) the claim for fees was presented
and delineated as ordered by the court and (2) the Plaintiffs filed no exception to the claim.
The order attaches and incorporates a transcript of the court’s various rulings which are not
otherwise stated on the face of the order. The transcript contains the following commentary:

               The Court hopes that by putting this case to rest, finally, that it
               will cause this family to move on. It is a shame that the Court
               has to be involved to this extent when family members become
               estranged and become suspicious and become obstreperous
               towards each other. It has cost everyone in this case dearly
               financially and emotionally. When the parties choose to invest
               such time and money to fight over things, such as the
               distribution of 83 wheat pennies in this case, it gives many
               people a picture of what has actually taken place between the
               parties.

               The clerk and master spent in excess of 167 hours in having her
               hearings and preparing her report. And, under that, Ms.
               Bucknor had been entitled to an additional $2,364.39. There are
               two other parties that were entitled to some lesser amount of
               monies. There have been no other monies found to be missing.
               Given the years of involvement by the POAs and the hundreds
               of thousands of dollars involved, $2,000 involved in mistakes,
               is not an extreme amount, however, the way the Personal
               Representatives handled this was probably inappropriate.

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                 Quite frankly, I’m surprised that their documentation isn’t off
                 even more, considering the CDs, the cash, the tobacco allotment,
                 the [payments to caregivers of the Deceased], the taxes, and the
                 contentiousness between the parties.

        The Defendant filed a motion to alter or amend or for a new trial. The motion is not
in the record.2 The response of the estate and the Plaintiffs to the motion is in the record.
The response argues that the motion should not be granted because no showing is made of
grounds for relief from the judgment and further that the proof at trial did not justify an
award of attorney’s fees. A transcript of the testimony of attorney Ayres, presumably an
excerpt from trial testimony, is attached as an exhibit to the response.

        The trial court granted the motion for new trial. The order states “that Ms. Bucknor
is entitled to a new trial on the issue of reimbursement to her of her attorneys fees incurred
in the captioned cases.” The court set a “Trial Date,” agreed upon by the parties. However,
when the case came before the court on the issue, the court refused to accept any evidence.
Counsel for the Plaintiffs pointed out that “the order of this Court said that . . . this was to
be a trial. You actually granted a new trial . . . .” The court voiced its disagreement as
follows:

                 I granted a hearing on her motion for attorney’s fees.

                 Guys, I have been handling this case for four or five years. And
                 every time I put down an order thinking it’s over with, you all
                 find something else to come back in front of me for.

                 Today is legal argument on the issue of attorney’s fees. It is
                 brief and it is going to be to the point and that’s it. And I hope
                 that when I put down the order on these attorney’s fees, that the
                 next place you all decide to go is the court of appeals.

                                                  *   *     *

                 So it is legal argument. Mr. Grant, as far as I’m concerned.




        2
        Because the motion is not in the record, it is not entirely clear what prompted its filing. We suspect,
but do not know for sure, that the Defendant challenged the fact that the court’s earlier order had not
burdened the estate with an obligation to pay any portion of the award of fees.

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The court allowed the Defendant to mark some exhibits for identification only, but it did not
receive any substantive evidence.

      The final order, now before us on this appeal, acknowledges that the matter was heard
pursuant to the court’s order granting a new trial, but states further,

              after hearing arguments of counsel, it is hereby ORDERED that
              Ms. Bucknor is entitled to be reimbursed $9,024.75 by the
              Willie Juanell Campbell estate for the time expended by S.
              Randolph Ayres on the probate case No. P-307. It is hereby
              ordered that the request of Sandra Bucknor for reimbursement
              in the amount of $23,793.00 and $1,851.50 is hereby denied for
              the time expended by S. Randolph Ayres in the civil action and
              [counterclaim] No. 23,667.

(Capitalization in original.) Neither the order nor the transcript of the hearing articulate any
specific findings or reasons for allowing the fees.

                                              II.

       The Plaintiffs raise the following issue:

              Did the Trial Court err when it found that [the Defendant’s]
              individual attorney was entitled to an attorney fee to be paid
              from the Estate without a finding that said attorney’s services
              benefited the Estate?

                                              III.

        We review a trial court’s ruling on a request for reimbursement of attorney’s fees out
of an estate for abuse of discretion. Merchants & Planters Bank v. Myers, 644 S.W.2d 683,
688 (Tenn. Ct. App. 1982). “As a general rule, for attorneys’ fees to be allowed out of an
estate, the attorney must have been employed by the personal representative of the estate;
however, there is an exception where an attorney’s services have inured to the benefit of the
estate and, in those cases, the court has discretion to allow fees.” Id. Under the abuse of
discretion standard of review we are not allowed to substitute our judgment for that of the
trial court. Lee Medical, Inc. v. Beecher , 312 S.W.3d 515, 524 (Tenn. 2010). The
deferential standard




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               does not, however, immunize a lower court’s decision from [all]
               meaningful appellate scrutiny.

               Discretionary decisions must take the applicable law and the
               relevant facts into account. An abuse of discretion occurs when
               a court strays beyond the applicable legal standards or when it
               fails to properly consider the factors customarily used to guide
               the particular discretionary decision. A court abuses its
               discretion when it causes an injustice to the party challenging
               the decision by (1) applying an incorrect legal standard, (2)
               reaching an illogical or unreasonable decision, or (3) basing its
               decision on a clearly erroneous assessment of the evidence.

               To avoid result-oriented decisions or seemingly irreconcilable
               precedents, reviewing courts should review a lower court’s
               discretionary decision to determine (1) whether the factual basis
               for the decision is properly supported by evidence in the record,
               (2) whether the lower court properly identified and applied the
               most appropriate legal principles applicable to the decision, and
               (3) whether the lower court’s decision was within the range of
               acceptable alternative dispositions.

Id. (citations omitted).

                                                IV.

        The Plaintiffs do not articulate the standard or review and therefore do not couch their
argument in terms of the abuse of discretion standard. They argue, simply, that the
applicable case law and Tenn. R. Civ. P. 52.01, require findings – findings that the trial court
did not make in the present case, namely, findings that the work done by attorney Ayres for
which the Defendant seeks reimbursement was necessary, reasonable, and benefited the
estate rather than just the Defendant. See Tenn. R. Civ. P. 52.01 (“In all actions tried upon
the facts without a jury, the court shall find the facts specially . . . .”); see also In re: Estate
of Wallace, 829 S.W.2d 696, 703 (Tenn. Ct. App. 1992)(stating the requirements for
awarding fees). The Plaintiffs further argue that there is no evidence in the record in this
case to support any such findings. The Plaintiffs appropriately point out that after granting
the Defendant a “new trial,” the court was unwilling to receive evidence at the hearing.

       The Defendant does not counter the Plaintiffs’ arguments directly. She asserts that
her attorney’s efforts saved the estate at least $9,080 as a result of the order disallowing

                                                -7-
Personal Representative Campbell’s claim for reimbursement of $4,080 and awarding the
$5,000 from the AmSouth bank account to the estate. She argues that it is a matter of simple
mathematics to see that the $9,024.75 fee awarded is less than $9,080.

       In their reply brief, the Plaintiffs make the following statement:

               [B]ased upon [the Defendant’s] Statement of the Facts . . . it is
               apparent that [she] argues there was aggregate or total savings
               of $9,080.00 for which the Court ordered reimbursement for
               attorney’s fees in the amount of $9,024.75. [The Plaintiffs do]
               not dispute these facts but [do] dispute that the attorney’s fees
               are allowable . . . .

The Plaintiffs assert that the record does not support a finding of a connection between
attorney Ayres’ efforts and the savings to the estate. With regard to the $4,080 in disallowed
expenses, the Plaintiffs assert that the only time entries of Mr. Ayres in the itemized bill that
have any arguable connection to the objection to the allowance reflect 2.84 hours that
resulted in charges of $497. With regard to the AmSouth checking account, the Plaintiffs
assert that “there is no time identified in the description of services rendered by attorney
Ayres indicating that he performed any service relating to [the] $5000 . . . taken from a
Certificate of Deposit and placed in the [Deceased’s’] checking account.” The Plaintiffs
further argue that the manner in which the hearing on fees was conducted deprived them of
a fair opportunity to cross-examine the requesting parties’ witnesses and to present proof of
their own on the issue. They rely upon the cases of Sherrod v. Wix, 849 S.W.2d 780, 785
([Tenn. Ct. App.] 1992), Kahn v. Kahn, 756 S.W.2d 685, 696 (Tenn. 1988), and Wilson
Management Co. Star Distributors Co., 745 S.W.2d 870, 873 (Tenn. 1988).

         We are faced here with a complete absence of any factual findings to show why the
court awarded the fees. The $9,080 savings to $9,024.75 fees correlation asserted by the
Defendant is pure conjecture; it is not based on any statement made by the trial court. We
agree with the Plaintiffs that there is nothing in the record other than possibly $497 in billings
to connect the work done by attorney Ayres to the $9,080 in money that ended up as estate
funds. After granting a “new trial” on the issue, the court refused to admit any substantive
evidence. Thus, even if there were specific findings, there is no proof from the hearing to
support such findings. We are aware that “[i]t is not always necessary that there be a ‘fully
developed record’ when the judge that presided over the case is asked to award attorney fees
. . . .” Miller v. Miller, 336 S.W.3d 578, 587 (Tenn. Ct. App. 2010). However, there must
be something in the record that would allow us to conclude that there is evidence somewhere
to support the award and that the trial court weighed the evidence in light of the applicable
law and exercised its discretion with those things in mind. See Lee Medical, 312 S.W.3d at

                                               -8-
524. Where there is no such basis for the award in the record, “the correct approach is to
vacate the award and ‘remand [the] case to the trial court for a new determination of an
attorney’s fee . . . .’ ” First Peoples Bank of Tennessee v. Hill, 340 S.W.3d 398, 410 (Tenn.
Ct. App. 2010)(brackets in original)(quoting Ferguson Harbour, Inc. v. Flash Market, Inc.,
124 S.W.3d 541, 553 (Tenn. Ct. App. 2003)).

                                            V.

       The order granting the Defendant reimbursement from the estate of attorney’s fees in
the amount of $9,024.75 is vacated. Costs on appeal are taxed to the appellee, Sandra
Bucknor. This matter is remanded, pursuant to applicable law, with instructions to conduct
an evidentiary hearing and enter an order with respect to attorney’s fees that complies with
Tenn. R. Civ. P. 52.01.




                                                   _______________________________
                                                   CHARLES D. SUSANO, JR., JUDGE




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