Session October 5, 2017
from the Chancery Court for Giles County No. P-1070-14 Stella
probate action is before this Court on appeal for the second
time. Following remand from this Court subsequent to the
first appeal, the trial court determined that the petitioner
did have standing to file her petition for probate as a
"purported creditor" of the decedent. The trial
court ultimately denied the petition, however, finding
"no basis for either primary or ancillary probate in
Tennessee." The trial court had also previously awarded
sanctions against the petitioner and her counsel pursuant to
Tennessee Rule of Civil Procedure 11. The petitioner has
appealed. Discerning no error in the trial court's
denials of both primary and ancillary probate, we affirm such
determinations. Although we also affirm the trial court's
imposition of Rule 11 sanctions against the petitioner and
her counsel generally, we vacate the specific award granted
against the petitioner personally and remand such issue to
the trial court for a determination of the proper amount of
sanctions to be awarded against the petitioner solely
pursuant to Rule 11.02(1). We affirm the trial court's
judgment in all other respects.
R. App. P. 3 Appeal as of Right; Judgment of the Chancery
Court Affirmed in Part, Vacated in Part; Case
A. Beam, III, and Irene R. Haude, Nashville, Tennessee, for
the appellant, Patricia Porter Kryder.
J. Hedrick, Nashville, Tennessee, for the appellees, James
Schneider Rogers and Jennifer Rogers-Etcheverry.
R. Frierson, II, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin,
R. FRIERSON, II, JUDGE.
Factual and Procedural Background
factual and procedural history of this case previous to the
first appeal is explained as follows by this Court's
opinion in In re Estate of Rogers, No.
M2015-01439-COA-R3-CV, 2016 WL 6087662, at *1 (Tenn. Ct. App.
Oct. 17, 2016) ("Rogers I"):
James Kemmler Rogers ("Decedent") died on June 11,
2014 in Bakersfield, California. Decedent was survived by two
adult children, James Schneider Rogers and Jennifer
Rogers-Etcheverry (together, "Appellees"). Decedent
was employed in the cattle business, and he moved quite
frequently. In approximately 2007, Decedent began residing on
a small portion of Appellant Patricia Porter Kryder's
farm in Tennessee. Ms. Kryder is an attorney, who is licensed
in Tennessee. In lieu of rent, Decedent and Ms. Kryder agreed
that Decedent would provide handymanlike duties.
On May 18, 2012, Decedent was injured in an automobile
accident. It is alleged that, prior to the accident, Decedent
had discussed, with family and friends, the possibility of
moving back to California. Shortly after the accident,
Decedent moved back to California to be near his family.
There is dispute between the parties as to whether Decedent
ever regained his mental faculties after the accident and
whether his move to California was voluntary. There is
evidence that Decedent was active after he moved to
California, i.e., swimming, eating out, and carrying on
business. After moving to California, Decedent did not
maintain any cable or phone services in Tennessee, nor did he
vote here. Decedent had no property in Tennessee at the time
of his death. Decedent's estate was admitted to probate
in Kern County, California on or about June 11, 2014. Ms.
Rogers-Etcheverry was named the administrator of the estate.
On November 7, 2014, Appellant filed a petition to probate
Decedent's estate in the Chancery Court for Giles County,
wherein she alleged that she was a "creditor of the
estate." On December 3, 2014, Appellant filed an
amendment to the petition to include a copy of the
Decedent's will, which was executed in Texas. On December
15, 2014, Appellees filed a "Notice of Filing, "
with which they tendered certified copies of an order of
probate and letters of special administration that had been
issued in connection with the probate of Decedent's
estate in Kern ounty, California. On December 18, 2014,
Appellees filed a response as interested persons to the
petition to probate, contesting probate in Tennessee.
The trial court heard the petition to probate on December 30,
2014 and January 15, 2015. On February 6, 2015, Appellees
filed a motion for discretionary costs. On February 10, 2015,
Ms. Kryder filed a request for findings of fact and
conclusions of law. On February 10, 2015, the trial court
entered a "Final Judgment and Order, " which denied
Appellant's petition to probate. Specifically, the trial
court found that, "at the time of his death . . ., James
Kemmler Rogers . . . resided in and was domiciled in
California." The court found that there was no basis for
either primary or ancillary probate in Tennessee. On February
13, 2015, the trial court entered an order granting
Appellees' motion for discretionary costs in the amount
of $4, 777.41.
On March 9, 2015, Appellant filed a renewed petition for
ancillary probate. As a ground for her petition, Ms. Kryder
cited the 2012
"California Nonresident or Part-Year Resident Income Tax
Return, " which Decedent allegedly executed and filed.
The document, Ms. Kryder argued, evidenced Decedent's
intent to remain domiciled in Tennessee, although he was a
resident of California.
After notice and time to cure, on June 8, 2015, Appellees
filed a motion for Rule 11 sanctions against Ms. Kryder or
her firm. Therein, Appellees alleged, inter alia,
that Ms. Kryder had failed to pay the discretionary costs as
ordered by the trial court. In addition, Appellees alleged
that Ms. Kryder had engaged in "delay tactic[s]" by
filing extraneous motions and memoranda in support of
ancillary probate after the trial court had orally ruled that
its order of February 10, 2015 was correct.
On June 12, 2015, Appellees filed a reply and supplemental
memorandum in response to Ms. Kryder's renewed motion for
ancillary probate. In this response, Appellees specifically
raised the issue of whether Ms. Kryder had standing to pursue
ancillary probate of Decedent's estate in Tennessee,
see discussion infra.
On July 1, 2015, Ms. Kryder filed a response to
Appellees' request for Rule 11 sanctions and request for
her attorney's fees and costs. In her response, Ms.
Kryder argued that her post-judgment filings were filed to
bring to the court's attention . . . that the [February
10, 2015] order failed to make findings on required elements
of proof (overt acts of the decedent in furtherance of intent
to abandon Tennessee and adopt California), failed to
establish who had the burden of proof at trial, made findings
of intent by negative inference that are clearly inconsistent
with the written statements of the decedent found in [the
Nonresident California tax return), and made findings
inconsistent with the substantial weight of the evidence on
the issue of the decedent's recovery from the car wreck.
7, 2015, Ms. Kryder filed a cross-petition for Rule 11
sanctions against Appellees.
The trial court heard Ms. Kryder's renewed petition for
ancillary probate on June 12, 2015, see discussion
infra. On July 14, 2015, the trial court entered an
order denying Ms. Kryder's petition. Therein, the trial
court found that Ms. Kryder had failed to present new
evidence so as to necessitate rehearing; however, the trial
court did not specifically rule on the standing argument that
was raised by Appellees in their response to Ms. Kryder's
petition for ancillary probate. On the same day, the trial
court entered a separate order denying Ms. Kryder's
request for the court to make additional findings of fact and
conclusions of law. Ms. Kryder filed a notice of appeal on
July 30, 2015.
On September 11, 2015, the trial court heard the
cross-motions for Rule 11 sanctions. By order of September
21, 2015, the trial court denied Ms. Kryder's Rule 11
motion, but granted Appellees' [motion]. The court found
"that all pleadings filed [on Ms. Kryder's behalf]
after the hearing on February 13, 2015 . . . [were]
improperly filed to harass, to cause unnecessary delay, and
to increase the cost of litigation." In a "Final
Judgment, " which was entered on October 30, 2015, the
trial court awarded Appellees $5, 311.85 in discretionary
costs and $34, 705.61 in damages under Rule 11. In its
October 30, 2015 order, the trial court states: "This is
a final judgment that resolves all claims and issues in this
case and is a final order pursuant to Tenn. R. Civ. P. 54,
from which an appeal may be taken." Following entry of
this order, Ms. Kryder filed a supplemental notice of appeal
on October 6, 2015. Thereafter, on November 24, 2015,
Appellees filed a motion to alter or amend the final
judgment. In their motion, Appellees asked the trial court to
amend its judgment to reflect Ms. Kryder's alias,
Patricia K. Gainer. By order of December 8, 2015, this Court
remanded the case to the trial court (noting that this Court
might not have attained jurisdiction under Tennessee Rule of
Appellate Procedure 3 in the absence of a ruling on
Appellees' motion to alter or amend). On remand, the
trial court entered an order on February 12, 2016, granting
Appellees' motion and amending its judgment to also
include Ms. Kryder's alias.
Id. at *1-2. Following a determination that no valid
final judgment had been entered by the trial court because
the standing issue had never been adjudicated, this Court
dismissed the appeal and remanded the matter to the trial
court for further proceedings. Id. at *6.
remand and additional briefing by the parties, the trial
court determined by order dated December 9, 2016, that Ms.
Kryder maintained standing to file her petition for probate
as a "purported creditor" of Mr. Rogers
("Decedent"). As the trial court explained:
Ms. Kryder does meet the minimum requirements of
constitutional standing in order to present a justiciable
controversy under ACLU of Tenn. v. Darnell, 195
S.W.3d 612, 620 (Tenn. 2006) and City of Chattanooga v.
Davis, 54 S.W.3d 248, 280 (Tenn. 2001). She claims a
distinct injury caused by Decedent's conduct; her
pleadings demonstrate a causal connection between an alleged
injury and the alleged conduct of Decedent; and the alleged
injury is capable of being redressed by a favorable decision
of the district court.
trial court ultimately denied the petition for probate,
however, concluding that there was "no basis for either
primary or ancillary probate in Tennessee." The court
determined that Decedent had moved to California and was
domiciled there at the time of his death. The court noted
that there was no evidence that Decedent "carried on any
business or pursued any activity whatsoever in Tennessee,
social or otherwise." The court further noted that
Decedent owned no property in Tennessee and that his estate
was admitted to probate in California.
Court subsequently issued mandate as to the first appeal on
January 12, 2017, and Ms. Kryder filed a motion seeking entry
of a final, appealable order by the trial court.
Decedent's two children (collectively, "the
Heirs") thereafter sought an award of additional fees
and expenses. The trial court entered an order on February
27, 2017, reaffirming its earlier ruling regarding standing.
The court concomitantly entered an order denying the
Heirs' request for supplemental fees and expenses.
March 8, 2017, Ms. Kryder filed a notice of appeal from the
order denying her petition for probate. The trial court
subsequently entered an order on March 10, 2017, awarding
supplemental fees and expenses to the Heirs in the amount of
$18, 860, for the period of October 3, 2015, to January 27,
Kryder presents the following issues for our review, which we
have restated slightly:
1. Whether the trial court erred by declining to find that
Decedent's prior domicile in Tennessee created a
presumption of domicile in Tennessee, which would have
required the Heirs to prove that Decedent abandoned his
Tennessee domicile when he moved to California.
A. Whether the Heirs failed to demonstrate that Decedent
abandoned his Tennessee domicile because Decedent committed
no overt act in furtherance of his intent to abandon
Tennessee and adopt California as his domicile.
B. Whether Decedent's 2012 Nonresident California income
tax return constitutes proof of his intent to maintain his
C. Whether the trial court erred by finding that Decedent
intended to make California his domicile simply because
Decedent did not return to Tennessee.
2. Whether the trial court erred by impliedly finding that
Decedent made a sufficient recovery following his automobile
accident to allow him to form intent to change his domicile
from Tennessee to California.
3. Whether the trial court abused its discretion in declining
to exercise jurisdiction over the petition for ancillary
probate based on the circumstances of this case.
4. Whether the trial court erred in granting the Heirs'
motion for Tennessee Rule of Civil Procedure 11 sanctions
against Ms. Kryder and her counsel.
5. Whether the trial court erred by finding that "safe
harbor" notice had been provided to Ms. Haude, as
co-counsel for Ms. Kryder, when she was not involved in
drafting the allegedly frivolous pleadings.
6. Whether the trial court erred by denying Ms. Kryder's
motion for Tennessee Rule of Civil Procedure 11 sanctions
against the Heirs.
Heirs raise additional issues, which we have also restated
7. Whether the trial court erred in its determination that
Ms. Kryder maintained standing to file her petition.
8. Whether this appeal is frivolous such that the Heirs
should receive an award of attorney's fees and expenses.
Standard of Review
review a non-jury case de novo upon the record, with
a presumption of correctness as to the findings of fact
unless the preponderance of the evidence is otherwise.
See Tenn. R. App. P. 13(d); Bowden v. Ward,
27 S.W.3d 913, 916 (Tenn. 2000). We review questions of law
de novo with no presumption of correctness.
Bowden, 27 S.W.3d at 916 (citing Myint v.
Allstate Ins. Co., 970 S.W.2d 920, 924 (Tenn. 1998));
see also In re Estate of Haskins, 224 S.W.3d 675,
678 (Tenn. Ct. App. 2006).
regard to discretionary decisions made by a trial court, our
Supreme Court has explained:
The abuse of discretion standard of review envisions a less
rigorous review of the lower court's decision and a
decreased likelihood that the decision will be reversed on
appeal. Beard v. Bd. of Prof'l Responsibility,
288 S.W.3d 838, 860 (Tenn. 2009); State ex rel. Jones v.
Looper, 86 S.W.3d 189, 193 (Tenn. Ct. App. 2000). It
reflects an awareness that the decision being reviewed
involved a choice among several acceptable alternatives.
Overstreet v. Shoney's, Inc., 4 S.W.3d 694, 708
(Tenn. Ct. App. 1999). Thus, it does not permit reviewing
courts to second-guess the court below, White v.
Vanderbilt Univ., 21 S.W.3d 215, 223 (Tenn. Ct. App.
1999), or to substitute their discretion for the lower
court's, Henry v. Goins, 104 S.W.3d 475, 479
(Tenn. 2003); Myint v. Allstate Ins. Co., 970 S.W.2d
920, 927 (Tenn. 1998). The abuse of discretion standard of
review does not, however, immunize a lower court's
decision from any meaningful appellate scrutiny. Boyd v.
Comdata Network, Inc., 88 S.W.3d 203, 211 (Tenn. Ct.
Discretionary decisions must take the applicable law and the
relevant facts into account. Konvalinka v.
Chattanooga-Hamilton County Hosp. Auth., 249 S.W.3d 346,
358 (Tenn. 2008); Ballard v. Herzke, 924 S.W.2d 652,
661 (Tenn. 1996). An abuse of discretion occurs when a court
strays beyond the applicable legal standards or when it fails
to properly consider the factors customarily used to guide
the particular discretionary decision. State v.
Lewis, 235 S.W.3d 136, 141 (Tenn. 2007). A court abuses
its discretion when it causes an injustice to the party
challenging the decision by (1) applying an incorrect legal
standard, (2) reaching an illogical or unreasonable decision,
or (3) basing its decision on a clearly erroneous assessment
of the evidence. State v. Ostein, 293 S.W.3d 519,
526 (Tenn. 2009); Konvalinka v. Chattanooga-Hamilton
County Hosp. Auth., 249 S.W.3d at 358; Doe 1 ex rel.
Doe 1 v. Roman Catholic Diocese of Nashville, 154 S.W.3d
[22, ] 42 [(Tenn. 2005)].
To avoid result-oriented decisions or seemingly
irreconcilable precedents, reviewing courts should review a
lower court's discretionary decision to determine (1)
whether the factual basis for the decision is properly
supported by evidence in the record, (2) whether the lower
court properly identified and applied the most appropriate
legal principles applicable to the decision, and (3) whether
the lower court's decision was within the range of
acceptable alternative dispositions. Flautt & Mann v.
Council of Memphis, 285 S.W.3d 856, 872-73 (Tenn. Ct.
App. 2008) (quoting BIF, a Div. of Gen. Signal Controls,
Inc. v. Service Constr. Co., No. 87-136-II, 1988 WL
72409, at *3 (Tenn. Ct. App. July 13, 1988) (No Tenn. R. App.
P. 11 application filed)). When called upon to review a lower
court's discretionary decision, the reviewing court
should review the underlying factual findings using the
preponderance of the evidence standard contained in Tenn. R.
App. P. ...