Session August 13, 2019
from the Probate Court for Davidson County No. 17P1814,
16P735, 15P1763 David Randall Kennedy, Judge.
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.
R. App. P. 3 Appeal as of Right; Judgment of the Probate
Chance Yarbro, Nashville, Tennessee, for the appellant, Hal
M. Roseman, as Trustee of the Philip Roseman 2012 Irrevocable
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
Dennis McGee, J., delivered the opinion of the court, in
which J. Steven Stafford, P.J., W.S., and Arnold B. Goldin,
MEMORANDUM OPINION 
DENNIS McGEE, JUDGE.
Facts & Procedural History
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
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. Six months later, in the same
court, Philip Roseman filed a petition seeking to set aside
the quitclaim deed. The Trustee filed an answer in both
lawsuits, opposing the relief requested.
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.
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."
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."
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.
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. 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. 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.
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.
appellant presents the following issues, which we have
slightly reworded, for review on appeal:
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.
the Trustee should be awarded attorney's fees and
expenses for this appeal.
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