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In re Estate of Loisculp

Court of Appeals of Tennessee, Nashville

November 17, 2017


          Session: May 17, 2017

         Appeal from the Chancery Court for Wayne County No. 2014-PR-194 Stella L. Hargrove, Judge

         This case deals with the issue of whether a personal representative of an estate can obtain additional attorney's fees incurred in connection with an appeal-an appeal that occurred after the personal representative had disbursed all the estate funds other than those belonging to the estate beneficiary who pursued the appeal. That individual-Donnie Culp (Culp)-appealed the sale of his late mother's real and personal property by Dianne Rich (the personal representative), executor of his late mother's estate. Prior to Culp's appeal, the personal representative obtained a court order closing the estate and awarding her $43, 256.37 in attorney's fees. These attorney's fees included an estimated 40 hours for an appeal. After paying all estate debts, including her compensation and attorney's fees, the personal representative disbursed all remaining estate funds, other than Culp's share, to the other beneficiaries. The personal representative now seeks $17, 500 in additional attorney's fees for the over 70 hours that her attorney spent on the appeal. The trial court denied the personal representative's request for additional attorney's fees, holding that it would be inappropriate to award them to her out of Culp's share of the estate. The court noted that the personal representative should have raised the issue before distributing the rest of the estate. We hold that the personal representative's attorney was fully compensated by the initial award of attorney's fees for her attorney's services on appeal. We further hold that no estate funds remain from which the personal representative could obtain additional attorney's fees because she distributed all funds other than Culp's share. Additionally, we hold that Culp lacks standing to ask this Court to determine whether the personal representative should be individually liable for her attorney's fees. The personal representative appeals. We affirm.

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

          James Y. Ross, Sr., Waynesboro, Tennessee, for the appellant, Dianne Rich, as Personal Representative of the Estate of Lois Culp.

          Alexander D. Camp and David W. Camp, Jackson, Tennessee, for the appellee, Donnie Culp.

          Charles D. Susano, Jr., J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Brandon O. Gibson, J., joined.




         The personal representative sought to auction Lois Culp's real and personal property as executor and trustee of Lois Culp's estate and trust. Donnie Culp opposed the sale of his mother's property. The trial court held that the personal representative was authorized to sell the property. Culp then attempted an interlocutory appeal, which was denied. After his mother's property was auctioned off, Culp sought to stay disbursement of the proceeds until he could appeal the sale. The personal representative responded that

[e]xcluding [Culp], if the other beneficiaries want to be distributed their portion of the Decedent's Probate Estate, then they can waive their right of appeal and receive their share . . . . Then, only [Culp's] share of the Decedent's Probate Estate would be subject to the stay under Rule 62 of the Tennessee Rules of Civil Procedure.

         The personal representative then filed a petition to fix her compensation and attorney's fees, discharge her as executor, and close the estate. The personal representative initially requested $43, 256.37 in attorney's fees for over 200 hours spent by her attorney, James Y. Ross, Sr. The personal representative then requested approval of $45, 000 in attorney's fees for over 200 hours of Ross's time. Afterward, Ross submitted an affidavit itemizing his time, asserting that he spent or will spend 265.25 hours, "including one appeal, " on this matter at a $250 an hour rate, resulting in $66, 312.50 in attorney's fees. In Ross's affidavit, under "additional proposed hours, " he included 40 hours as "estimated time for [a]ppeal" in his total requested hours. Culp disputed 112.5 of Ross's 265.25 hours, leaving 152.75 hours undisputed. Culp did not dispute Ross's requested 40 hours for appeal.

         The trial court denied Culp's request to stay disbursement pending appeal. The court then closed the estate and approved $43, 256.37 in attorney's fees for more than 200 hours of Ross's time. The order stated

[t]hat the compensation allowed to the Petitioner, as Executor, and fees allowed to the Attorney of Record for the Probate Estate of the Decedent, covers all services heretofore rendered, and such as may hereafter be rendered to said Probate Estate, and the Executor, shall be, and is ...

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