LEROY STOCKLIN, JR.
KAREN R. LORD ET AL.
Session June 18, 2014
Appeal from the Circuit Court for Hamilton County No. 13C606 L. Marie Williams, Judge
Buddy B. Presley, Jr., Chattanooga, Tennessee, for the appellants, Karen R. Lord and Carol Dean.
Allison Ulin Lynch, Chattanooga, Tennessee, for the appellee, Leroy Stocklin, Jr.
Charles D. Susano, Jr., C.J., delivered the opinion of the Court, in which D. Michael Swiney and Thomas R. Frierson, II, JJ., joined.
CHARLES D. SUSANO, JR., CHIEF JUDGE
On June 1, 2012, Dean filed a petition for probate of the last will and testament of her mother, Frances R. Ostreika. The will designated Dean as executrix. The beneficiaries of the estate were Ms. Ostreika's three children – Dean, Lord, and their brother, Fred R. Ritchie – each of whom was to receive one-third of the estate. The estimated value of the gross estate was $170, 000. The primary asset was Ms. Ostreika's residence.
On June 19, 2012, Stocklin caused a garnishment to be served on Dean in care of the estate's attorney, Buddy Presley. The garnishment notice stated it was directed at the "distribution from the Estate of Frances R. Ostreika." The trial court found that "[i]n his capacity as attorney for the estate, Mr. Presley acknowledged that the garnishment had been served and would be honored." However, Dean did not file a timely answer to the garnishment, thereby triggering Tenn. Code Ann. § 29-7-114, which provides that "[i]f, when duly summoned, the garnishee fail[s] to appear and answer the garnishment, the garnishee shall be presumed to be indebted to the defendant to the full amount of the plaintiff's demand, and a conditional judgment shall be entered up against the garnishee accordingly." See also Tenn. Code Ann. § 26-2-209 (2000) ("If the garnishee fails to appear or answer, a conditional judgment may be entered against the garnishee for the plaintiff's debt, upon which a notice shall issue to the garnishee returnable at such time as the court may require, to show cause why judgment final should not be rendered against the garnishee. On failure of the garnishee to appear and show cause, the conditional judgment shall be made final, and execution awarded for the plaintiff's entire debt and costs.").
Conditional judgment was entered against Dean. A scire facias, i.e., a "show cause, " writ issued in accordance with Tenn. Code Ann. § 29-7-115, which states that "[u]pon this conditional judgment, a scire facias shall issue to the garnishee . . . to show cause why final judgment should not be entered against the garnishee." On the date of the hearing on the scire facias, April 8, 2013, Dean filed an answer, alleging in pertinent part that "[a]s of the date of service of this garnishment, Carol Dean, in her capacity as Executrix for the Estate of Frances R. Ostreika[, ] does not have in her possession or control any property, debts, or effects belonging to the Defendant."
Following the scire facias hearing, the trial court entered judgment against Dean in accordance with Tenn. Code Ann. § 29-7-112, which provides:
If it appears that the garnishee is indebted to the defendant, or has property and effects of the defendant subject to the attachment, the court may, in case recovery is had by the plaintiff against the defendant, give judgment against the garnishee for the amount of the recovery or of the indebtedness and property.
The trial court held and reasoned as follows:
In his capacity as attorney for the estate, Mr. Presley acknowledged that the garnishment had been served and would be honored. He was the estate attorney and represented Carol Dean in her capacity as an executor, not personally. He represented funds would be due to Karen Lord from the estate which was valued at $170, 000 on the probate petition. No written answer was made to the garnishment until the hearing date of April 8, 2013. Between the date the garnishment was filed and the date of the filing of the answer, monies well in excess of the garnishment amount were distributed to Karen Lord by Carol Dean. It is the position of Ms. Dean that a garnishment issued against her not naming her as an executrix is served upon her only in her individual capacity and she at no time held anything of value owing to Ms. Lord in her individual capacity. The manner in which the garnishment is styled makes it clear she was being served in her capacity as an executrix and the actions of the attorney for the estate in acknowledging the garnishment would be paid out of the proceeds of the estate make this argument invalid. . . .
Ms. Dean further contends she only would be responsible for anything in her hands at the time the garnishment was served. While it is true the house itself was not sold so there were not liquid funds in her hands at that time, the garnishment statutes apply to things of value as well as liquidated monetary amounts. This is not a contingent liability such as a contract of insurance not yet due and payable. The house was a thing of value in which the judgment debtor held an interest at the time the garnishment was served. The contingency which vested a property ...