# FILED
March 17, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk 

### IN THE COURT OF APPEALS OF TENN ESSEE

AT NASHVILLE

IN RE ESTATE OF JANET GAIL ) LEVINE MARCH, Absentee, ) ) Jeffrey Mobley, in his capacity as ) Conservator and Receiv er for ) Janet Gail Levine Marc h, ) Appeal No.

) 01-A-01-9708-PB-00437 Plaintiff/Appellee, ) ) Davidson Probate VS. ) No. 96P-1702 ) LAWRENCE E. LEVINE, ) CAROLYN R. LEVINE, for themselves ) and in th eir capacity as next friends of ) their daughter Janet Gail Levine March, ) Absentee, and their grandchi ldren, ) Samson Leo March and Tzipora ) Josette March (Children of Absentee), ) ) Defendants/Appellants, )
APPEALED FROM THE PROBA TE COURT OF D

AVIDSON CO UNTY AT NASHVILLE, TENNESSEE THE HONORABLE FRANK C. CLEMENT, JUDGE
MARK H. LEVINE 350 South Grand Avenue, Ste. 3600 Los Angeles, CA 90071-3442 JON E. JONES 345 S. Jefferson Avenue, 4th Floor Cookeville, TN 38503-0699 Attorneys for Appellant JOEL M. LEEMAN 3rd Floor, 230 Fourth Av enue North Nashville, TN 37219-8888 Attorney for Appellee

REVERSED AND REMAND ED

BEN H. CANTRELL, PRESIDING JUDGE, M.S. CONCUR: KOCH, J. TODD, J. 

## O P I N I O N- 2 - This case involves the as sets of an absentee’s estate under Tenn. Code Ann. § 30-3-201, et seq. After appointing a conservator for the estate, the Pr obat e Court of Davidson County approved the sal e of the absentee’s major asset, and the distribution of part ofthe proceeds to the absentee’s husband, who is a suspect in her disappearance. The absentee’s parents, appearing on their own behal f and as n ext friend of the absentee, attack the l ower court’s order on both procedural and substan tive grounds. The conservator and the absentee’s hu sband c hallenge the parents standing to appeal the lower court’s or

der. We find that the appellants had standing to object to the settlement and that the distr ibution to the husband is not justified by

the proof. Accordingly , we reverse the l ower court’s order and remand the cause for further proceedings.

I.

Janet Gail Levine March di sappeared on August 15, 19 96, leaving behind a husband and two minor chil dren. The husband , a Nashville law yer, soon becamethe subject of an intense inv estigation into his w

ife’s disappearance. Although a body has not b ee n found, the investigation continues, and Mr. March continues to invoke t he Fi fth Amendment when questioned about hi s knowledge of his wife’s whereabouts.

In addition to small checking and savin gs accounts and other small assets, Ms. March owned tw o primary assets in her

sole name: an upscale home on BlackberryRoad in Nashville and a 1996 Volvo. She also ow ned a 1990 Jeep in joint ownership with her

husband.

Ms. March’s parents, Lawrence and Carolyn Levine, had financed the construction of the home on Blackberry Road through gifts and a l ow-interest loan. At the time of Ms. March’s di sappearance, the Levines held a note, signed by both Mr.1 The petition also s ought a tra nsfer to Mr. Ma rch of the custod ial rights to two accounts hel d by Ms. M arch for her childre n unde r the Te nness ee Un iform T ransfe rs to Mino rs Act.

2 The ir oppositi on was based, in p art, on Tenn. Code Ann. § 31-1-106, whi c h prevents any person from taking the property

of a decedent, “by wil l, deed or otherwise, ” when such person has ki lled the decedent (unless the killing was accidental or in self-defense). - 3 - and Ms. March secured by a deed of trust on the house. Mr. March also sig ned the deed of trust.

On October 30, 1996, Mr. March filed a peti tion in theProbate Court of Davidson County seeking a summary transfer ofthe checking and savings accounts to him. 1 Although Tenn. Code Ann. § 30-3- 203 authorized the court to ma ke the transfer without notice or a hear ing (because the two ac counts cont ained less than $5,000), the court set a heari ng and notified Ms. March’ s next of kin.

On the date of the hearing, Mr. and Ms. Levine filed a n interveni ng petition asparents and next friends of Janet March, and as grandp arents of the two children. Th ey opposed the transfer of any property to Mr. March. 2 On the same date, Mr. March amendedhis petition asking to be appointed a receiver for all of Ms. March’s property. After the heari ng, the court noted the hostility between the parties and appointed an independent conservator pursu ant to Chapter 3, Title 30 of the Tennessee Code. The ord er gave the conservator power over all of Ms. March’s assets, including her r

eal estate.
By this time, Mr. March had relocate d to Chicago with the children. The house on Black

berry Road wa

s empty ; the uti lities

had been turned o

ff; the real estate taxes were in arr

ears, and the mortgage w as in default. Mr. and Ms. L evine started foreclosure proceed ings, but the conse rvator sec ured an in junction preve n ting the sale until February 28, 1997.Although Mr. March had previously non-suited his claims in order to avoid dis

covery, he

re asserted an interest in all of Ms. March’s property in January

of 1997.- 4 - The conservator sought to be appointed re ceiver for Ms. March’s property and asked for

further instructions

from the court. The motion to be appointe d receiver was unopposed, so the court granted the motion on F ebruary 4, 1997. In the same order, the court ordered the conservator/receiv er to list the house for sale.
On February 27, 1997

the conservator petiti oned the court to a pprove a contract of sale for the house. The c ourt set a hearing on the moti on for March 19, 1997. In a f lurryof activity, beginn ing on March 6, 1997, Mr. March recorded a lien lis pendens asserting a marital int erest in the house on Blackberry Road, recorded fourdeeds of trust on the property securing members of

h is family (with hi mself as grantor), and sued the conservator and the trustee in the Levines’ deed of tru st for damages.

After

the hearing on March 19, the court struck the encumbrances filed byMr. March, approved the sale of the property, and or dered that a ll l ien claims be transferred to the proceeds of the sale. Mr. March filed a notice o f appe al from the “final” judgmententered on April 1. The Levi nes, with the court’s approval, r

enewed their effortsto depose Mr. March. The depos ition was scheduled for May 21, 1997.

The conservator and Mr. M arch be gan negotiati ng a settlement. On May 20, they notified the Levines that they had reached an agreement and would present it to the court for approval the next day. The agreement p rovided that Mr. M arch would receive th e Volvo and the Jeep and a $60,000 cash payment fro m the proceeds of the sale. In return Mr.March prom ise d to dismiss his appeal and relinquish all claims he had to the proceeds of the sale of the house. In addition Mr. March ag reed to waive any clai m for homestead and a year’s suppor t, and he agreed that in the event he b ecame en titled to any portio n of Ms. Ma rch’s esta te, as an elective share
or as a division of marital

property in a divorce, the amount due him would be reduced by$73,250 .00 (the sum of th e $60,00 0 in cash a nd one-h alf of t he value o f the Vol vo and Jeep.)3 In fact, t he Levines had onl y begun the dep ositi on of Mr. March t hat morning , and he had refused to answer

any questi ons about the basis for his cl aims. - 5 - At the hearing on May 21, the Levines v igorously protested the approval of the settlement and asked for a continuance in order to discover the basis for any claims Mr. March had against the house. 3 They pointed out that ther e was no evidence before the court that would s ubstantiate such a clai m, and that the conservator

had adamantly denied Mr. M arch had any colorable claims, until the settlementtalkstarted. Without hearing any proof, the court approv ed the settlement.

II. Standing T he probate court held that Mr.and Ms. Levine’s inter est in the proceeding was confined to the amount of their claim under the deed oftrust; and that they did not have standing to object t o the settlement between the cons ervator and Mr. March. The conservator continues to press that argument on appeal.

We disagree. The Le vines joined this f igh t as th e next friend of their daughter. It is not cl ear from their inte rvening pe tition whe ther the y stood as n ext friend to the children or simply as their gr

andparents, but

it is clear that they

asserted defenses to Mr. March’s claim of an interest in Ms.March’s estate. Specific ally, they raised as a defense th e provisi on in Te nn. Code Ann. § 31-1-106 that prohibits a person who kills another from i nheriting the deceased’s property or taking such property “by will, deed, or otherwise.”

A “next friend” is, in a sense, a volunteer who asserts a claim on behalf of a person under a legal disability. See Williams v. Gaither , 1 39Te nn . 5 87 , 2 02S. W. 917, 918 (1918). A next friend is someone who is capable of protecting the interests of the person under the legal disab ility, who will be liable for the costs, and against whom the court can make and enforce its orders. See Ras kin v. War ner , 70 Tenn. 302, 30 4-05 (1879). While a next friend is not a party to the action, see Queen v

. Jolley , 219 Tenn. 427, 431, 410 S.W.2d 416, 418 (1966), t he role a n ext frien d plays- 6 -

resembl es that o

f a guardian. See Williams v. Gaither , 1 39Te nn . a

t 5 89 , 2 02S. W. at 918; Cummings v. Patter son , 54 Tenn. App. 75, 94, 388 S.W.2d 157, 166 (1964).

A next friend may be replaced if the court appoints a personal represe ntati ve for the person under disability. The general rule is that a duly appointed representative becomes the successor to the next friend with regard t o any claim the next friend has asserted on behalf of a person under a legal di sability. See Williams v. Gaither

, 139 Tenn. at 590, 202 S.W. at 918 (Tenn. 19 18). This transfer of power includes the pow er to control the claim. Id.

But the transfer is not automatic. In Williams v. Gaither a husband had been injured in an accide n t, and the injuries he sustained rendered him mentally incompe tent. H is wife , as nex

t friend , sued th e defendant on her husband’s behalf. The husband’s mother was later appointed guardian of the injured man and she sued the defendant

in a separate ac

tion for the same

injuri es. The g uardian then fi led a petition in the cause brought by the next friend asking that the action bedismissed at the cost o f the ne xt friend . The cou rt analyzed the probl em in this way:

The first suit having been properly broug ht , what right had the guardian by motion or petition therein to hav e it dism issed? If, and so long as, the guardian procee ds on the basis of the first suit being wrongfully broughtor prosecuted by the nex t friend, she is to be deemed to be astranger to that action, and as such she could not succe ssfully so move to di smiss it. (Citation omitted). The tr ue conception seems to us to be that t h e regularly appointed guardia n became the successor of the next friend in respect of the rig ht to control the suit. Upon the due appointmentof the guardian, the power to control the non compos

an d his affairs, including the s uit, devolved upon her . The powe r former ly ex ercisable by the next friend was s uperse ded by that belonging to the regula rlya ppointed guardian. The great er power overlapped and, so to speak, ab s orbed the lesser at the guardian’s election. It is not tobe tolerated that property rights of a non compos mentis

should be controll ed by a next f riend after the appointment of a regul ar guardian, against the will of the latter. Neither is it to be recognized that the guardian may at will thus s et at naught what

the next fr iend has precedently done, under the law’s sanction, in bringing suit.If s he wishes, as a part of her- 7 - right of co ntrol, to dismiss such s uit, she must do so by asserting her rig ht of s uccessi on to the next friend. The proper course, therefore, was for the guardian to move to be substituted as plaintiff in the firs t suit; then, if she d esire d for any reason, she might have dismissed that suit and broug ht another, or assumed continued c ontrol of that actio n. But she would in either event do so by adopting the action, and taking the r eins from the hands o f the next friend, and not as one claim ing as a n antagon ist, or

rival plainti ff. 139 Tenn. at 590-91.

In Hunt v. Hunt

, 412 S.W.2d 7 (Tenn. App. 1965), the husband, already under a guardian, brought suit by next friend to have his marriage annulled. The tri al court held that the next friend had no standing to bri ng suit whe re a guardian had already been appointed for the person under di sability. This court reversed the lower court because the regular guar dian had refused to take a stand either for or against the claim.

The Rules of Civil Procedure seem to have adopted the view that some claims may be asserted by next fri end even where a personal representative has

been appointed. Rule 17.03 of the Tenne ssee Rules of Civil Procedure provides:

Whenever an infant or incompetent pers on has a representative, such as a general guardian, conservator, or other like fidu ciary, the representative may sue or defend on behalf of the infant or incompetent per son . If an infant or incompetent p erso n does not have a duly appointed representative, or if justice requires , he or she may sue by next friend. (Emphasis added.) While we do not fi nd any Tennessee cases on point, the weight of authority interpre ting Rule 17(c), Fed. R. Civ. Proc. (almost identical to Tenn. R. Civ. Proc. 17.03) is in favor of allowi ng suit by next fri end in certain circumstan ces. In 3A J. Moore & J. Lucas, Moore ’s Federal Practice and Procedure , § 17.26 (2d. ed. 1985), the authors state: Under the second sentence of subdivision (c) an infant or incompetent person who does not have a duly appointed re presentative, may sue by his next friend or by a guardian ad litem . Even though the infant or i ncompet ent has a general representative, if the repr esentative is unable or ref uses to act or his interests confict with the person- 8 - represent ed, the infant or incompetent may sue in federal court by his next friend or by a guardia n ad litem . Courts have always had the pow er to appoint special repr esentatives under such circumstances, and thi s power should b e considered retained by the federal cour t in Rule 1 7(c). The fact that the f i rst sentence is permissive is an implicit recognition of that power; and, in any event, a gua rdian ad litem probably can be appointed in such cases under the third sentence of subdivision (c).

State courts ha ve taken t he same vi ew when a pe rsonal re present ative has a conflict of interest or “for other cause.” See In Re Be can , 26 A.D.2d 44, 270 N.Y.S.2d 923 (App. Div. 1966). We note that our rule allows sui

t by next friend when the incompetent person does not have a personal representative or “if justice requires.” The fact that the rule is in the alternati ve suggests that

a next friend may assert the interests of an absentee even though a personal represent ative has been appointed.

Where the Levines originally opposed Mr. March’s claims as next frien ds of the absentee, the appointment of a conservator did not automatically terminate their standing t o oppos e the con servator/ March set tlement . In fact , their sta tus as next friend of the absentee has not been challeng ed in this record. Therefore, they had standing to oppose the settlement

.
III. The Settlement A

pproval a. Due Process Since we have found that Mr. and Ms. Levine had standing to object to the settlement, we believ e the emergency hearing on May 21, 1997

deprived them of
a meaningful opportunity to object to the terms of the settlement. They w ere in fact, in the midd le of a deposition with Mr.March, seeking to dis cover the basis for any claim he had against his wife’s property . So far as this record show s, he never answered any of the questions.- 9 - Article I § 8 of our Constitution prohi bits the taking of property except by the “law of the land.” This phrase is sy nonym ous with “due process of law” used in the Fifth and Fourteenth Amendments of the Uni ted States Constitution. Sta te v
. Hale , 840 S.W.2d 307 (Ten n. 1992). A fundamental requirement of due process is notice and an opportunity to be heard, Phillips v. State Bd. of Regents , 863 S.W.2d 45 (Tenn. 1993), or, as our Supreme Co urt said in State ex rel. Anglin v. Mitchell, 596 S.W.2d 779 at 786 (Tenn. 1980), “the ri ght to a fair trial in a fair tribunal.” The purpose of notice under the due process clause is to apprise a party of, and permit adequate preparatio n for, an imp e nding hearing. Memphis Light, Gas and Water Division v. Craft

, 436 U.S. 1 (1978).

The hearing conducted on May 21, 1997 faile d to satisfy the requirements

of due process. The Levines di d not have an adequate opportunity

to rebut Mr. March’s claims.

b. A Failure of Proof

The settlement of a claim by or against an infant or inc ompetent person must be based on proof showing that the settlement is in the minor or incompetent person’s best interests. Thomas v. R. W. Harmon, Inc. , 760 S.W.2d 212 (Tenn. App. 1988). In Thomas v. Harmon the cour t set as ide a set

tlement of aminor’s personal injuryclaim where the only proof offered was proof that the child’s parents w ished to enter into th e se ttlemen t. The co urt said, “The min or’s rights were impai red by a purported hearing, when in fact there was no evidence introduced upon which a court could base an opinion requiring consideration of the best interests of the minor.” 760 S.W.2d at 217.

It is fair to point out

that the court in Thomas v. Harmon did not appoint
a guardian ad litem to protect the minor’s interests, while the court here appointed a conservator

for the absentee’s estate. But it seems to us that the situation is exactly the same regardless of who pur ports to represent the perso n under disability. I n- 10 -

Thomas it was the

parents; here it was the conservator, but the problem of proof (or lackthereof) is the same. There is nothin g in the record on which the court could base a determination that it was in the best interest s of the a bsentee to pay a minimum of $73,000 from her esta te to settle what appears to be doubtful claims.

It is not clear

from this record what claims Mr. March might have against the absentee estate. He asserts an interest in the equity in the house, and the settlementprovides that he would credit the amount he received to any claim he might have in a subsequent divorc e. But the facts simply do not show that he would rece ive
a substantial portion of the equ ity in the house as a par t of a divorce proce eding. While the equity in the house would be marital property, we cannot speculate on how it would be divided in light of the other marital as sets he received in the s ettlement and the lack of proof of the contributions he mad e to the acquis it ion and construction of the house.

At the hear ing the conservator also ex pressed a fear that, absent the settlement, the litigation expens es would continue to escal ate as Mr. March pursued an appeal of the March 19 order and tried to hold up the sale of the hous e.

We have no doubt that Mr. March has the ability to make trouble for the estate, but we do not

think he could have held up the sale.In its March 19 order,the court had already ordered that the house be sold and that Mr. March’s claim s a nd those ofhis relatives be tr ansferred to the proceeds of the sale.The appeal of that order could not bemade instantaneously, because it was not a finalorder under Rule 3(a), Tenn. R. App. Proc., and we think the probate court had the pow er to deal with any frivolous claims or ob

structionist tactics that threatened to deplete the absentee’s estate. In short, the courts should not be held hostage by in terrorem tactics of one of the litigants.

IV.- 11 - Although not raised by the parties, there are two additional matters that we feel compelled to address.

a. The Levines’ Co nflict of Interest We think the Levines have a potential conflict of interest as next friends of the absentee. They are actuall y creditors of the estate by virtue of the mortgage they held on the Blackberry Road pr operty. They hadstarted forec losure proceed ings before the conservator obtained a preliminary injunction in January of 1997. W hile
we are satisfied to recogniz e that th eyhave standing and that they were acting in a good faith at tempt to protect t heir abse nt daught er’s esta te, they sh ould not wear two hats in this litigati on.

Our jurisdict ion is app ellate on ly. Tenn. Code Ann. §16-4-108. Since the issue was not raised in the court below w e cannot address it her e, and wit h the sale of the house now presumably complete we do not know if a conflict st ill exists. We me re ly point out the potential conflict for consideration in subsequent proceedings.
b. The Children’s Rights

The absentee’s childr

en obvi ously have rights that deserve specific protection. Their r

ights c onfl ict with th eir father’s rights, an d we have noted the conflict bet ween their grandparents and their mother’s estate. That leaves the conservator as the only party in this liti gation without an obv ious conflict.

We do not wish to increase the expenses i nvolved in settling this estate. But if the probate court determines that the conservator cannot adequately represent the children’s interests,the appointment of a guardianad litem would be appropriate.

The judgment approving the conservator’s set

tlement with Mr. March is reversed and the cause is remanded to the Pr obate Court of Davidson Count y forfurther proceedings in conformity with this opinion. Tax the costs on appeal to Mr. March.

_________________________________ BEN H. CANTRELL, PRESIDING JUDGE, M.S.

CONCUR:

_______________________________ WILLIAM C. KOCH, JR., JUDGE

_______________________________ HENRY F. TODD, JUDGE