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In re Estate of Roseman

Court of Appeals of Tennessee, Nashville

October 10, 2019

IN RE ESTATE OF PHILIP ROSEMAN, ET AL.

          Session August 13, 2019

          Appeal from the Probate Court for Davidson County No. 17P1814, 16P735, 15P1763 David Randall Kennedy, Judge.

         This appeal originated from three related cases filed in the Probate Court for Davidson County. The issue on appeal relates to attorney's fees and expenses. Finding no error, we affirm the decision of the trial court.

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

          Tyler Chance Yarbro, Nashville, Tennessee, for the appellant, Hal M. Roseman, as Trustee of the Philip Roseman 2012 Irrevocable Gift Trust.

          Michael Reed Griffin and David Callahan, III, Nashville, Tennessee, for the appellee, Jean Roseman, individually, and as the Personal Representative of the Estate of Philip Roseman.

          Carma Dennis McGee, J., delivered the opinion of the court, in which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin, J., joined.

          MEMORANDUM OPINION [1]

          CARMA DENNIS McGEE, JUDGE.

         I. Facts & Procedural History

         Prior to discussing the facts, it is important to note that the relevant procedural history for this appeal originated from three related cases filed in the Probate Division of the Circuit Court for Davidson County: (1) a petition to terminate or modify the "Philip Roseman 2012 Irrevocable Gift Trust" (the "Trust case"), (2) a petition to set aside a quitclaim deed transferring the home of Philip Roseman to the trust (the "Deed case"), and (3) probate of the Estate of Philip Roseman. (the "Estate case").

         In 2012, Philip Roseman, as Grantor, and his son, Hal Roseman, as Trustee (the "Trustee"), executed the Philip Roseman 2012 Irrevocable Gift Trust (the "Trust"). Immediately thereafter, Philip Roseman executed a quitclaim deed transferring ownership of his home to the Trustee. The home was the only asset placed in the Trust. In 2015, Philip Roseman and his wife, Jean Roseman, filed a petition to terminate or modify the Trust.[2] Six months later, in the same court, Philip Roseman filed a petition seeking to set aside the quitclaim deed.[3] The Trustee filed an answer in both lawsuits, opposing the relief requested.

         The Deed case and the Trust case were consolidated for the purposes of discovery. Following discovery, the parties filed cross motions for summary judgment in both the Trust case and the Deed case. The parties' cross motions were heard on August 24, 2017. On September 22, 2017, the trial court entered one order on the parties' competing motions for summary judgment, which was filed in both the Trust case and the Deed case.

         As to the Deed case, the trial court held that the quitclaim deed was valid. It granted the Trustee's motion for summary judgment and denied Philip Roseman's motion for summary judgment. Philip Roseman appealed the trial court's judgment as to the Deed case. With respect to the Trust case, the trial court held that the Trust should not be terminated. However, "the trust should be modified to explicitly reflect that Philip Roseman intended to continue to reside in the [h]ome following the execution of the Trust and Quitclaim Deed." The trial court further ordered that the parties "attend mediation in an effort to resolve how the Trust should be modified."

         On October 4, 2017, while the appeal in the Deed case was pending before this Court, and before a final order modifying the Trust could be entered in the trial court, Philip Roseman died. An estate was opened, Mrs. Roseman was appointed as Executrix, and the estate was substituted as a party in both the Trust case and the Deed case. On March 2, 2018, the Trustee filed a claim against the estate for $82, 444.03 in attorney's fees and expenses incurred in defending the Trust in the two separate lawsuits. The estate filed an exception to the claim, requesting that the claim be dismissed as "no creditor- debtor relationship" existed between the estate and the Trustee. After a hearing, the trial court found it was "premature to make a ruling on Claimant's claim for $82, 444.03 for attorneys' fees and expenses incurred in litigating as Trustee of the Trust two (2) pending lawsuits, case numbers 151763 and 16P735." Consequently, the trial court continued the hearing on the claim "indefinitely pending further orders of the Court."

         On July 2, 2018, the Court of Appeals entered an order affirming the judgment of the trial court in the Deed case. See In re Philip Roseman 2012 Irrevocable Gift Tr., No. M2017-01994-COA-R3-CV, 2018 WL 3217245, at *6 (Tenn. Ct. App. July 2, 2018). On October 8, 2018, the Trustee filed a motion with the probate court in the Trust Case requesting discretionary costs in the amount of $2, 198, to be paid from the Estate of Philip Roseman. On that date, the Trustee also filed motions in the Deed and the Trust cases requesting $85, 211.53 paid by the Trustee in attorney fees and costs to be paid from the Estate and/or Jean Roseman, or in the alternative reimbursed from the corpus of the Trust. On November 7, 2018, an order of voluntary nonsuit was entered in the Trust case.

         On December 4, 2018, the trial court heard arguments from counsel on the Trustee's motions and the claim against the estate. The trial court issued an oral ruling at the conclusion of the hearing. A written order from the hearing was entered on December 14, 2018. On December 17, 2018, the Trustee filed an objection to the order and submitted an alternative proposed order. The Trustee argued that the order entered on December 14, 2018, did not accurately reflect the oral rulings of the court. On January 7, 2019, the trial court entered the order submitted by the Trustee which stated that it incorporated the oral rulings of the trial judge.[4] However, the transcript was not attached to the order. The trial court denied the Trustee's claim against the estate for attorney's fees and expenses, but it granted the Trustee's claim against the estate in the amount of $2, 198 for discretionary costs.[5] It also granted the Trustee's request to "reimburse himself from the corpus of the Trust for attorneys' fees and expenses, [in the amount of $85, 211.53, ] he incurred in litigating the Trust Case and Deed Case." Furthermore, the trial court denied the Trustee's request to assess any fees or additional costs against the Estate or Jean Roseman.

         The Trustee timely filed a notice of appeal, listing all three docket numbers. This Court determined that the order appealed was not final due to noncompliance with Tennessee Rule of Civil Procedure 58. Consequently, we entered a show cause order directing the Trustee to obtain the entry of a final judgment or show cause why the appeal should not be dismissed. The trial court promptly entered an order that complied with Rule 58. Attached to the order was a portion of the transcript from the hearing on December 4, 2018, memorializing the oral rulings of the trial court. The order appealed is now final and appealable.

         II. Issues Presented

         The appellant presents the following issues, which we have slightly reworded, for review on appeal:

         1. Whether the trial court abused its discretion in declining to assess the award of the Trustee's attorney's fees and expenses against the Estate of Philip Roseman and Petitioner, Jean Roseman, individually.

         2.Whether the Trustee should be awarded attorney's fees and expenses for this appeal.[6]

         In the posture of appellee, Mrs. Roseman seeks an award of attorney's fees for trial and on appeal. For the following reasons, the decision of the probate court is affirmed ...


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