                IN THE COURT OF APPEALS OF TENNESSEE
                             AT JACKSON
                                   July 19, 2011 Session

                       JOHN D. GLASS
                                v.
   SUNTRUST BANK, Trustee of the Ann Haskins Whitson Glass Trust;
  SUNTRUST BANK, Executor of the Estate of Ann Haskins Whitson Glass
                       and William Glass

               Direct Appeal from the Probate Court for Shelby County
                       No. D9423     Karen D. Webster, Judge


                No. W2010-02527-COA-R3-CV - Filed August 26, 2011


This is an appeal from an action originally filed in the Chancery Court of Shelby County,
seeking damages for Appellees’ alleged breach of trust, breach of fiduciary duty,
mismanagement, negligence, and breach of duty to diversify in its roles as executor of
Decedent’s estate and Decedent’s successor trustee. Decedent’s son, the Appellant herein,
filed his original suit in the Probate Court of Shelby County, seeking return of administrative
costs and fees charged by Appellee. The probate court affirmed the fees, and Appellant filed
a subsequent complaint in the chancery court. The chancery court complaint was eventually
transferred to the probate court, where it was dismissed on grounds of collateral estoppel and
res judicata. Appellant appeals. We conclude that there was no final order in the first
probate proceeding and, consequently, the criteria for both collateral estoppel and res
judicata are not met. Reversed and remanded.

  Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Probate Court Reversed

J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and H OLLY M. K IRBY, J., joined.

Donald W. Pemberton, Memphis, Tennessee, for the appellant, John D. Glass.

Olen M. Bailey, Jr., Memphis, Tennessee, for the appellees, SunTrust Bank, Trustee of the
Ann Haskins Whitson Glass Trust; and SunTrust Bank, Executor of the Estate of Ann
Haskins Whitson Glass and William Glass.
                                   MEMORANDUM OPINION 1

       Ann Haskins Whitson Glass (“Decedent”) died testate on January 2, 2007. On
January 5, 2007, the Probate Court of Shelby County admitted Decedent’s will and opened
her estate (the “Estate”). The Decedent’s will names her two sons, William Q. Glass, Jr. and
Appellant John Douglas Glass as the beneficiaries (in equal part) of the res of her Estate.
Decedent named National Bank of Commerce (“NBC”) as her Executor. The residual estate
was to be held in trust pursuant to a Trust Agreement executed by Decedent on April 23,
1994, and amended and restated on June 23, 2000 (the “Trust”). The Trust was a revocable
grantor trust, with Decedent being the trustee during her lifetime. Upon Decedent’s death,
the Trust names NBC as the successor trustee. The residuary Trust was to be divided, per
stirpes, between Decedent’s sons. NBC was subsequently sold to SunTrust Bank
(“SunTrust,” and together with William Q. Glass, “Appellees”). As NBC’s successor in
interest, SunTrust became the trustee of Decedent’s Trust and the executor of her Estate.

        On January 26, 2009, Appellant filed a petition to recover executor’s fees against
SunTrust in the Shelby County Probate Court (the “First Probate Case”), alleging that a
$49,000 fee paid to SunTrust was not approved by the probate court, was excessive and
unreasonable, and was incorrectly paid as an executor’s fee when it should have been paid
as a trustee’s fee.

        On February 18, 2009, SunTrust filed a motion to dismiss Appellant’s petition. In
support of its motion, SunTrust noted that Decedent’s will provided that all administrative
costs of the Estate would be paid “by the Successor Trustee of the Trust. . . .” 2 Because
SunTrust’s “administrative costs” were paid out of Trust funds, and not out of assets of the
Estate, SunTrust argued that the probate court, which (under its probate jurisdiction) may
only exercise jurisdiction over assets passing under the will, lacked jurisdiction to adjudicate
the issues arising from costs paid from Trust funds. On March 23, 2009, Appellant filed a


       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
         See Tenn. Code Ann. § 30-2-317(a)(1), defining “costs of administration” as compensation to the
personal representative and to the personal representative’s legal counsel.

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response to Appellees’ motion to dismiss. In relevant part, Mr. Glass argued that, because
SunTrust occupied the roles of both executor of Decedent’s Estate and Decedent’s successor
trustee, the probate court could properly exercise subject-matter jurisdiction to address the
issue of administrative costs. On March 23, 2009, SunTrust filed a response to the petition
to recover executor’s fees. A hearing was held on March 26, 2009, and the probate court
issued an oral ruling from the bench on June 3, 2009, which was incorporated by reference
into the probate court’s July 14, 2009 Order. This Order provides, in relevant part, as
follows:

              IT IS, THEREFORE, ORDERED, ADJUDGED                         AND
              DECREED THAT:

              A. The Motion to Dismiss filed by SunTrust Bank is denied.
              *                              *                      *

              C. The fee in the amount of $49,000.00 . . . is reasonable and is
              approved by this Court.

              D. All other relief requested by Petitioner in the Petition is
              denied.

              *                                 *                           *

              F. SunTrust Bank is entitled to reimbursement for attorney’s
              fees in defending the Petition. . . . The issue of whether or not
              the attorney’s fees should be allocated to and paid from the
              Petitioner’s portion of the Trust and Estate or to and from the
              entire Trust and Estate is reserved for future hearing.
              Furthermore, the issue of the amount of such attorney’s fees is
              reserved for a future hearing.

Although the July 14, 2009 Order indicates that the issues concerning attorney’s fees were
reserved for future hearing, there is no indication in the record that such hearing actually
occurred, or that there was any ruling on these issues.

       On September 16, 2009, Mr. Glass filed a separate complaint in the Chancery Court
of Shelby County (the “Chancery Court Case”). The complaint, filed against “SunTrust
Bank, Inc.; SunTrust Bank Memphis, Trustee of the Ann Haskins Whitson Glass Trust; and
SunTrust Bank Memphis, Executor of the Estate of Ann Haskins Whitson Glass,” sought
damages for SunTrust’s alleged: (1) breach of trust and fiduciary duty by: (a) its decision “to

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treat the assets of the Trust as part of the Estate and [to] receive their fee as Executor rather
than Trustee based on the value of the assets of the Trust,” and (b) by failing to develop [and]
communicate a plan to [Appellant] and implement a plan for distribution of Trust assets; (2)
mismanagement and negligence in failing to: (a) select the alternate valuation date for
Federal and Tennessee death taxes, (b) place the probate assets in the Trust prior to Ms.
Glass’s death to avoid the necessity of probate, (c) provide the Appellant with accurate tax
information, (d) select a favorable fiscal tax year for the Estate, and (e) in leasing the Dyer
[County] farm without Appellant’s consent; (3) breach of duty to diversify by failing to
formulate, communicate and implement a plan for distribution of the Trust assets in violation
of Tennessee Code Annotated Section 35-15-804.3

        On October 14, 2009, SunTrust moved the chancery court to transfer the case to the
probate court or, in the alternative, to dismiss the chancery court case. In support of its
motion, SunTrust argued that the allegations raised in the September 16, 2009 chancery court
complaint had previously been asserted in the First Probate Case. Based upon its argument
that the claims raised in chancery court had been adjudicated by the probate court in its July
14, 2009 order, SunTrust argued that the issues raised by Appellant in the Chancery Court
Case were precluded, or should otherwise be dismissed under the doctrine of res judicata.
SunTrust also argued that the chancery court lacked jurisdiction because Appellant’s
complaint was merely an attempt to appeal the First Probate Case to the chancery court,
which had no jurisdiction to hear the appeal. Furthermore, SunTrust argued that Appellant
filed his Chancery Court Case in the name of “SunTrust Bank, Inc.” and “SunTrust Bank
Memphis,” which it averred were not legal entities in existence in the State of Tennessee.
By consent order entered on October 30, 2009, Mr. Glass was allowed to amend his chancery
court complaint to delete the “Inc.” and the “Memphis” from SunTrust’s name, and to add
his brother, William Glass, as a necessary party. Thereafter, on November 3, 2009, SunTrust
amended its motion to transfer the case. The amended motion removed the legal entity
argument based upon the amendments to the complaint. On November 4, 2009, Appellant
filed a response in opposition to SunTrust’s motion to transfer the Chancery Court Case to


        3
            Tennessee Code Annotated Section 35-15-804 addresses prudent administration of trusts and states
that:

                           A trustee shall administer the trust as a prudent person
                           would, by considering the purposes, terms, distributional
                           requirements, and other circumstances of the trust. In
                           satisfying this standard, the trustee shall exercise
                           reasonable care, skill and caution.




                                                     -4-
probate court. By Order of April 16, 2010, the chancery court granted SunTrust’s motion to
transfer the case.

       On April 26, 2010, the probate court accepted the transfer from the chancery court
(the “Second Probate Case”). There is no indication that the probate court consolidated the
Second Probate Case with the First Probate Case. Following the transfer of the case,
SunTrust filed a second amended motion to dismiss the amended complaint in the probate
court, reiterating its previous arguments of issue preclusion and res judicata. Appellant
opposed this motion. A hearing on the second amended motion to dismiss was held on
August 19, 2010. By Order of November 12, 2010, the probate court dismissed the Second
Probate Case upon its finding that Mr. Glass’s claims and issues were barred on grounds of
both collateral estoppel and res judicata. The November 12, 2010 order was amended
February 2, 2011 to add the word “Final” in its caption and to tax costs.

       Appellant appeals and raises two issues for review as stated in his brief:

              1. Whether the trial court erred in granting [SunTrust’s] Second
              Amended Motion to Dismiss based upon a finding that
              [Appellant] was precluded under the doctrine of collateral
              estoppel from filing and litigating his Amended Complaint
              against [SunTrust].

              2. Whether the trial court erred in granting [SunTrust’s] Second
              Amended Motion to Dismiss based upon a finding that
              [Appellant] was precluded under the doctrine of res judicata
              from filing and litigating his Amended Complaint against
              [SunTrust].

       The sole issues before this Court are whether the trial court erred in finding either the
doctrine of res judicata or collateral estoppel applicable so as to bar the Second Probate
Case. A trial court's decision that a lawsuit is barred by principles of res judicata or
collateral estoppel presents a question of law, which this Court reviews de novo upon the
record with no presumption of correctness. In re Estate of Boote, 198 S.W.3d 699, 719
(Tenn. Ct. App. 2005).

        The doctrine of res judicata generally bars a second lawsuit between the same parties
or their privies on the same cause of action with respect to all issues that were or could have
been litigated in the former suit. State v. Thompson, 285 S.W.3d 840, 848 (Tenn. 2009)
(citing Massengill v. Scott, 738 S.W.2d 629 (Tenn. 1987)). Collateral estoppel operates to
bar a second suit between the same parties and their privies on a different cause of action

                                              -5-
only as to issues which were actually litigated and determined in the former suit. Id. As
noted in Thompson:

              In the context of a civil case, collateral estoppel (also known as
              issue preclusion) has been described as an extension of the
              doctrine of res judicata (also known as claim preclusion) and
              applicable only when “it affirmatively appears that the issue
              involved in the case under consideration has already been
              litigated in a prior suit between the same parties, even though
              based upon a different cause of action, if the determination of
              such issue in the former action was necessary to the judgment .
              . . .”
Id. (citing Massengill, 738 S.W.2d at 631–32).

       The main purposes of the res judicata and collateral estoppel doctrines are to prevent
inconsistent or contradictory judgments, conserve legal resources, and protect litigants from
having to defend multiple lawsuits involving the same facts. Creech v. Addington, 281
S.W.3d 363, 376 (Tenn. 2009) (citing Sweatt v. Tenn. Dep't of Corr., 88 S.W.3d 567, 570
(Tenn. Ct. App. 2002)).

        For the doctrine of res judicata to apply, there must be a final judgment on the merits
that involved the same cause of action as the current action. Creech, 281 S.W.3d at 377.
Parties asserting a res judicata defense must demonstrate that: (1) a court of competent
jurisdiction rendered the prior judgment; (2) the prior judgment was final and on the merits;
(3) the same parties or their privies were involved in both proceedings; and (4) both
proceedings involved the same cause of action. See Lee v. Hall, 790 S.W.2d 293, 294 (Tenn.
Ct. App. 1990). A prior judgment or decree does not prohibit the later consideration of rights
that had not accrued at the time of the earlier proceeding or the reexamination of the same
question between the same parties when the facts have changed or new facts have occurred
that have altered the parties’ legal rights and relations. See White v. White, 876 S.W.2d 837,
839–40 (Tenn. 1994).

       In order “[t]o prevail with a collateral estoppel claim, the party asserting it must
demonstrate: (1) that the issue to be precluded is identical to an issue decided in an earlier
proceeding; (2) that the issue to be precluded was actually raised, litigated, and decided on
the merits in the earlier proceeding; (3) that the judgment in the earlier proceeding has
become final; (4) that the party against whom collateral estoppel is asserted was a party or
is in privity with a party to the earlier proceeding; and (5) that the party against whom
collateral estoppel is asserted had a full and fair opportunity in the earlier proceeding to
contest the issue now sought to be precluded.” Gibson v. Trant, 58 S.W.3d 103, 118 (Tenn.

                                              -6-
2001) (Birch, J., concurring and dissenting) (citing Beaty v. McGraw, 15 S.W.3d 819,
824–25 (Tenn. Ct. App. 1998)).

         As set out above, in order to prevail on either a res judicata or a collateral estoppel
defense, there must be a final order from an earlier proceeding. In this case, that order would
be the July 14, 2009 Order, which was entered in the First Probate Hearing. The threshold
issue for this Court, therefore, is whether that order was, in fact, a final judgment. We note
that, although the probate court amended its November 12, 2010 order (entered in the Second
Probate Case) to make that order final and appealable, this fact does not have any bearing on
the finality of the order entered in the First Probate Case. This is because the Second Probate
Case was a distinct and separate lawsuit, which was not consolidated with the First Probate
Case.

        Turning to the First Probate Case, the July 14, 2009 Order entered therein is not final.
As set out above, the probate court’s order did not adjudicate the issue of attorney’s fees, nor
is there any indication that this order was meant to close the Estate as a final adjudication of
all pending Estate issues. It is well settled that, “[i]n the absence of an express direction of
the court to the contrary, a judgment that disposes of only some of the claims, issues, or
parties is not a final judgment and is subject to revision by the court at any time before the
entry of a final judgment adjudicating all claims and the rights and liabilities of all parties.”
Creech, 281 S.W.3d at 377; Estate of Henderson, 121 S.W.3d 643, 645 (Tenn. 2003); State
ex rel. McAllister v. Goode, 968 S.W.2d 834, 840 (Tenn. Ct. App. 1997). In the absence of
full adjudication of all claims, issues, and parties, Tennessee Rule of Civil Procedure 54.02
provides:

              When more than one claim for relief is present in an action . . .
              or when multiple parties are involved, the Court, whether at law
              or in equity, may direct the entry of a final judgment as to one or
              more but fewer than all of the claims or parties only upon an
              express determination that there is no just reason for delay and
              upon an express direction for the entry of judgment. In the
              absence of such determination and direction, any order . . .
              that adjudicates fewer than all the claims or the rights and
              liabilities of fewer than all the parties shall not terminate the
              action as to any of the claims or parties, and the order or
              other form of decision is subject to revision at any time
              before the entry of the judgment adjudicating all the claims
              and the rights and liabilities of all the parties.




                                               -7-
Tenn. R. Civ. P. 54.02 (emphasis added). The July 14, 2009 Order does not contain
Tennessee Rule of Civil Procedure 54.02 language. In the absence of this language, and
because the issues involving attorney’s fees were not adjudicated, we conclude that the July
14, 2009 Order was not a final judgment. With no final judgment entered in the First
Probate Case, there can be no finding of res judicata or collateral estoppel.

        For the foregoing reasons, we reverse the order of the trial court and remand this cause
for all necessary proceedings. Costs of this appeal are assessed against the Appellee,
SunTrust Bank, for which execution may issue if necessary.




                                                    _________________________________
                                                    J. STEVEN STAFFORD, JUDGE




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