                 IN THE COURT OF APPEALS OF TENNESSEE
                      MIDDLE SECTION AT NASHVILLE



NANCY COCKRILL,                       )
                                      )
      Plaintiff/Appellant,            )      Appeal No.
                                      )      01-A-01-9703-CV-00113
VS.                                   )
                                      )      Davidson Circuit
JUDGE JAMES EVERETT, JUDY             )      No. 96C-2299
NEWELL, MAXINE BRADLEY, RON
STONE, CHARLES CORNELIUS,
FELLER BROWN AUCTIONEER
                                      )
                                      )
                                      )
                                                                 FILED
REALTORS,                             )                         September 24, 1997
                                      )
      Defendants/Appellees.           )                          Cecil W. Crowson
                                                                Appellate Court Clerk
       APPEALED FROM THE CIRCUIT COURT OF DAVIDSON COUNTY
                    AT NASHVILLE, TENNESSEE

            THE HONORABLE HAMILTON V. GAYDEN, JR., JUDGE



NANCY COCKRILL
172-E Dellway Villa Apartments
Nashville, Tennessee 37207
      Pro Se/Plaintiff/Appellant

JUDY NEWELL
4014 Drakes Branch Drive
Nashville, Tennessee 37218
      Pro Se/Defendant/Appellee

MAXINE C. BRADLEY
410 Farris Avenue
Madison, Tennessee 37115
      Pro Se/Defendant/Appellee

RICHARD L. COLBERT
511 Union Street, Suite 2700
Nashville, Tennessee 37219
      Attorney for Defendant/Appellee Charles G. Cornelius

HOMER R. AYERS
303 Frances Street
Goodlettsville, Tennessee 37070-0904
      Attorney for Defendant/Appellee Feller Brown Auctioneer Realtors


                             AFFIRMED AND REMANDED


                                             BEN H. CANTRELL, JUDGE




                                OPINION
              A pro se plaintiff filed this action for damages against a deceased

probate judge, a real estate auction company, a lawyer, and two individuals. The

Circuit Court of Davidson County granted the motions of the lawyer and the auction

company to dismiss for failing to state a claim. Acting sua sponte, the court also

dismissed the complaint against all the remaining defendants. We affirm.



                                            I.



              The complaint sought $350,000 damages for negligence and

mismanagement of the estate of Ira Richards Cockrill. The complaint does not

explain the plaintiff’s interest in, nor the defendants’ relationship to the estate. Among

the allegations is one “That this complaint is brought under authority of T.C.A. 29-20-

201, et. seq. that notice was timely given per attached exhibit 1. and that said

complaint is proper under removal of immunity, T.C.A. 29-20-205.”



              Tenn. Code Ann. § 29-2-201, et seq. deals with the removal of immunity

for governmental entities under the Tennessee Governmental Tort Liability Act. No

governmental entities have been named as defendants, and how the cited legislation

affects the controversy is not explained in the complaint.



              From the remaining allegations in the complaint we gather that the

decedent owned a parcel of real estate at his death and that someone (not any of the

defendants) lived in it rent free for seventeen years despite the protests of the heirs,

and their insistence that the interloper be removed; that the plaintiff thinks the

“executors” mismanaged the estate and profited from it to the detriment of the heirs;

that the probate judge erred in not removing the interloper from the property, and then

ordering the property sold through the auction company.




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                                          II.

                      The Lawyer and the Auction Company



              The lawyer defendant and the auction company filed motions to dismiss

under Rule 12.02(6), Tenn. R. Civ. Proc. We agree that the complaint does not state

a cause of action against either. After being mentioned in the caption, the lawyer’s

name does not thereafter appear in the complaint. As to the auction company, by

engaging in a broad view of the complaint, we could interpret it as stating that the

auction company sold the property under the orders of the probate court.



              There is no allegation in the complaint that either defendant engaged in

any wrongful conduct or breached any duty to the individual plaintiff or to the estate.

Therefore we conclude that the lower court properly dismissed these two defendants.



                                          III.

                          The Two Individual Defendants



              The other two individual defendants filed an answer. Without identifying

their relationship to the estate, they denied the material allegations in the complaint

and alleged that the records of the probate court would show that they used their best

efforts to evict the interloper and to get the property sold. The answer also asserts

that the proceeds from the sale of the property were divided equally among the heirs.

We think a reasonable conclusion to be drawn from the answer is that the two

individuals filing the answer were representatives of the estate in some capacity.

Despite the conclusion to be drawn from the answer, the lower court dismissed the

complaint sua sponte.



              We agree that the complaint should have been dismissed -- even on the

court’s own motion. Defenses of the failure to state a claim and the lack of subject


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matter jurisdiction of the court are not waived by filing an answer to the complaint.

Tenn. R. Civ. Proc. 12.08. They may be raised at any time, even at a trial on the

merits, id., and the court has the authority to dismiss the complaint sua sponte.

Huckeby v. Spangler, 521 S.W.2d 568 (Tenn. 1975).



              Taking the allegations of the complaint in the light most favorable to the

plaintiff, this is an action for damages against the two named individuals for not taking

control of the decedent’s real property and for not selling it in a reasonable manner.

Even if we take the answer as an admission that the two individuals represented the

estate in some capacity, the real property of the decedent descends to the heirs or

passes to the devisee under the will, and the executor or administrator cannot

manage or dispose of it. Gray v. Boyle Inv. Co., 803 S.W.2d 678 (Tenn. App. 1990).

“In short, the executor or administrator has nothing to do, virtute officii, with the lands

of the decedent, except to subject it, in case of the insolvency of the personalty, in the

mode prescribed by statute, to the satisfaction of the decedent’s debts.” Pritchard on

Wills and Administration of Estates, Fifth Ed. § 630; Edwards v. McCall, 10 Tenn. App.

276 (1929).



              Apparently the property in this case was sold to pay the debts of the

decedent (although that is not clear from the record), but the complaint alleges that

the sale was conducted under the orders of the probate court. In short, the complaint

does not state a breach of duty to the plaintiff for which the individual defendants are

liable in damages.



              If we construed the complaint as an action to open the accounts of the

personal representatives, we would have difficulty with the question of the circuit

court’s jurisdiction. While the courts have recognized the inherent power of the

chancery court to open and review accounts generally, Cannon v. Apperson, 82 Tenn.




                                           -4-
553 (1885), we do not know of any authority to conduct such a proceeding in the

circuit court.



                 The judgment of the lower court is affirmed and the case is remanded

to the Circuit Court of Davidson County for any further proceedings necessary. Tax

the costs on appeal to the appellant.



                                           _________________________________
                                           BEN H. CANTRELL, JUDGE



CONCUR:




_______________________________
HENRY F. TODD, PRESIDING JUDGE
MIDDLE SECTION



_______________________________
WILLIAM C. KOCH, JR., JUDGE




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