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In re Estate of Ross

Court of Appeals of Tennessee, Nashville

July 28, 2015

IN RE ESTATE OF JANE KATHRYN ROSS ET AL.

Session April 17, 2015

Appeal from the Probate Court for Davidson County No. 10P-837 Randy Kennedy, Judge

James G. Stranch, III, and Michael J. Wall, Nashville, Tennessee, for the appellant, David G. Rogers, Trustee for the Bankruptcy Estate of Paul T. Sorace.

Eugene N. Bulso, Jr., and Paul J. Krog, Nashville, Tennessee, for the appellees, Estate of Jane Kathryn Ross and Joan Wildasin.

John D. Kitch, Nashville Tennessee, for the appellee, Peggy D. Mathes.

Frank G. Clement, Jr., P.J., M.S., delivered the opinion of the Court, in which Richard R. Dinkins and W. Neal McBrayer, JJ., joined.

OPINION

FRANK G. CLEMENT, JR., JUDGE

This is the third appeal arising from a dispute between the Estate of Jane Kathryn Ross and her son, Paul Sorace. See In re Estate of Ross, No. M2012-02228-COA-R3-CV, 2013 WL 3346717 (Tenn. Ct. App. June 27, 2013) ("Ross I"); In re Estate of Ross, No. M2013-02218-COA-R3-CV, 2014 WL 2999576 (Tenn. Ct. App. June 30, 2014), appeal denied (Nov. 21, 2014) ("Ross II"). The relevant facts giving rise to the underlying civil action, as stated in Ross I, are as follows:

Jane Kathryn Ross was the mother of Paul Sorace and Joan Wildasin. In June 1991, Mr. Sorace purchased property on Old Charlotte Pike in Pegram, Tennessee consisting of about seven acres with a small farmhouse. In 1998, Ms. Ross executed a will that left most of her estate to her two children in equal portions. Ms. Ross executed a durable power of attorney to Ms. Wildasin in 2000.
In 2004, Ms. Ross was living in a house she owned on Golf Club Lane in Nashville. Mr. Sorace was living in the small farmhouse in Pegram. Although the precise nature of their arrangement is in dispute, Ms. Ross and Mr. Sorace agreed that she would build a home on the Old Charlotte Pike property and they would live there together.
On June 29, 2005, Ms. Ross sold her house on Golf Club Lane; she made a net gain of $395, 719 on this sale. She moved into the farmhouse with Mr. Sorace and, on July 6, 2005, she and Mr. Sorace signed a construction contract to build a new house on the Old Charlotte Pike property. Ms. Ross and Mr. Sorace both signed the construction contract as owners. By the time the project was completed in June 2006, Ms. Ross paid a total of $433, 064.68 to construct the new home; Mr. Sorace contributed $15, 979.16 in expenses related to the new house.

Ross I, 2013 WL 3346717, at *1.

Ms. Ross and Mr. Sorace moved in the new home when it was completed, and they were the only residents until April 2007 when Mr. Sorace, who had been a bachelor, married Kacie Cheshire. Id. Ms. Cheshire and her five-year-old son from a previous relationship then resided in the home with Mr. Sorace and Ms. Ross. Thereafter, Paul and Kacie Sorace added twin sons to the household. Id.

Prior to the marriage, Mr. Sorace was requested to put his mother's name on the deed. He agreed to do so as soon as he could see an attorney to accomplish the task; however, Ms. Ross's name was never put on the deed. Id. at *3.

Ms. Ross's health deteriorated to the extent that, in November 2008, Ms. Wildasin moved her mother to California to live with her. Id. at *2. Four months later, in March 2009, Ms. Wildasin, acting as her mother's next friend, commenced this action against Mr. Sorace seeking a judgment for, inter alia, a constructive trust or unjust enrichment. Id. at *1. Ms. Ross died one year later, her estate was substituted as plaintiff, and the case was transferred to the Seventh Circuit Court for Davidson County, which has exclusive probate jurisdiction as well as circuit and chancery court jurisdiction. Id. Because the underlying civil action was essentially a dispute between the two beneficiaries of the estate, Ms. Ross's two adult children, the probate court appointed attorney Peggy Mathes, Public Administrator for Davidson County, as the administrator of Ms. Ross's estate. In an amended complaint, the estate asserted claims against Mr. Sorace and his wife for a resulting trust, a constructive trust, unjust enrichment, rent, conversion and financial exploitation, and violation of the Adult Protection Act. Id.

Christina Norris of Norris & Norris, PLC, was initially retained to represent Ms. Ross in the action filed on her behalf by Ms. Wildasin. After Ms. Ross's death, Ms. Mathes, in her capacity as the Administrator of the estate, retained Ms. Norris to represent the estate in that action; thus, Ms. Norris continued to prosecute the claims against Mr. Sorace.

Over the next several months, Ms. Mathes concluded that the estate lacked the financial resources to continue prosecuting the case against Mr. Sorace. Instead of abandoning the action, Ms. Mathes negotiated a settlement with Mr. Sorace, which required court approval. When Ms. Norris filed a motion on behalf of the estate to obtain court approval of the settlement, Ms. Wildasin opposed the settlement.

In the interim, Ms. Wildasin retained attorney Eugene Bulso and the firm of Leader, Bulso & Nolan, PLC to represent her interests as a beneficiary in the probate proceedings. When Ms. Wildasin objected to her brother settling the estate's claims against him for a sum she deemed inadequate, Ms. Wildasin's attorneys offered to prosecute to trial the pending case against Mr. Sorace on a contingent fee basis at no out-of-pocket expense to the estate. In response to that offer, Ms. Norris, in her capacity as counsel for the Administrator of the estate, sent Mr. Bulso an email on February 3, 2012, stating in pertinent part:

. . . Peggy Mathes [the administrator of the estate] will agree to your proposal contingent upon a written agreement stating her fee as Administrator, court costs, and fees and expenses of Norris & Norris . . . will be paid "off the top" of any recovery you obtain. That is, the items described above must have priority for payment ahead of your fees and expenses and ahead of any distribution to Ms. ...

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