### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE Assigned on

Briefs February

22, 2002 IN RE: ESTATE OF

THERESA JOAN C UNNINGHAM, DECEASED Appeal from the Probate Court for Fr anklin County Floyd Don Davis, Judge
No. M2001-01965-COA-R3-CV - Filed August 7, 2002

The plaintiff filed a claim against the estate of the deceased more than eighteen months af ter the first publication of notice to creditors and twenty months after her death. The trial court grante d him a judgment against the estate for the full amount of his cla im. We reverse. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Probate Court

Reversed and Remanded B EN H. C ANT RELL , P.J., M.S., delivered the opinion of the court, in which W IL LI AM C. K OCH , J R . and W IL LI AM B. C AIN , JJ., joined. Guy R. Dotson, Sr. and Gregory M. Reed, Murfre esboro, Tennesse e, for the appell ant, David Pitts.

OPINION I. T HE E STATE OF J EAN H ELEN W EST Theresa Jean Cunningham died in Frankli n County, Tennessee, on Ma rch 26, 1999. Alth ough this case involves the disposition of her estate, the claim

involved a

rose fr om her ro le in another estate, the dispos ition of wh ich is discussed in ou

r opinion i n the cas e of David Pitt s v. Floyd R. Black well, Sr. , No. M2000-01733-COA-R3-CV (Tenn. Ct. App. Dec. 28, 2001). D uring the last eight months of her life, Ms. Cunningham acted as co- conservator for Ms

. Jean Helen West, an Alzheimer’s patient. Her co-conservator w as Floyd R. Bla ckwell, the owner and operato

r of the Joh

nson-Bl ackwell Funera

l Home. Af

ter Ms. Wes t’ s death, Mr . Blackwell’s funeral home arranged her fune ral. The cost, $26,367.75, was paid from the e state

of Ms. West, and from the proceeds of a burial policy she had owned. Ms. Cunning ham and Mr . Black

well wer e both compensa ted $1,20 0 for the

ir servic es as co- conserv ators.1 The proof showed tha t Ms. West ’s fun eral was t he most expens ive one eve r perf ormed by Mr. Blackwell, and indica ted tha t he ear ned a pro fit of abo ut $1 2,00 0 on the pu rchas e and sale of the vault an d cas ket alo ne. -2- Ms. Cunningham’s death occurred shortly after the first

accounting of Ms. West’s estate was filed. David Pitts objected to the amended and final accounting as a n interested party . He contended that Mr. Blac kwell had breach ed his fid uciary duty to Ms. West by transferring her burial insurance policy from anothe r funeral home to his own, and by providing funeral and burial services to her while acting as co-conservator. He al so qu estioned whether the funeral and burial expenses wer e reasonable and proper. See Tenn. Code Ann. § 34-11-113(e). Alth ough the proba

te court ordere d Mr. Bla

ckwell to return the proceeds of the burial policy ($7,731.93) to Ms. West’s estate, it approved the acc ounti ng in all other respects. This court reversed the trial court, finding that Mr. B lackwell was not entitled to earn a profit from

the esta te of Ms. West, 1 and that he had breached his fiduc iary duty . We remanded the case “for a determination of t he reasonabl e and nece ssar y f uner al exp ense s comm

ensu rate with a n esta te the size of Ms. West’s.” II

. T HE E STATE OF T HERES A J EAN C UNNINGHAM Ms. Cunningham’s will nam ed her br other Da vid Pitts as e

xecutor of

her esta te. The w ill was su bmitted to p

robate, and on Apr

il 1, 1999, t

he court appointe d Mr. Pitts e

xecutor. O n April 12, 1999, the

first notice to creditors was published. No claims were filed agains t the esta

te within four months of th at date, and no cla ims were fi led within

one yea r of Ms. Cunningham’s death. See Tenn. Code Ann. § 30-2-307. On November

27, 2000, Floyd R. Blac

kwell, d/b/a Johnson/Blackwell FuneralHome, filed a clai m again st the estate of Theresa Joan Cunningham, for pay ment of $7,731.93 for funeral services provided to the estate of Ms. West. T he claim form was not accompanied by any documentation, such as a cont ract, bi ll or judg ment, and did not sta

te why Ms. Cunning

ham’s es tate might owe this sum to Ms. West’s estate. Mr. Pitts filed a timely exception to the claim. A hearing on the claim was set for January 30, 2001. Mr. Blackwell appeared on that date without his attorney. He

alleged that Ms. Cunningham had signed the funeral bill for Ms. West, that she had agreed to be responsible for the bill, and that

she hadreceived the $7,000 as the beneficiar y of the buria l pol icy. The attorne

y for Ms. Cunningha

m’s estate stated that the $7,000 had been returne d to Ms. West’s estate. The probate judge observed tha t Ms. Cunningham was the primary beneficiary

of Ms. West’s estate, but noted that such a circumstance didn’t make the Cunningham estate liable for the West debts. The judge also observed that the Court of Appe als had not yet issued its opinion in the case involving Ms. West’s estate, and agreed with the par ties that our resolution of that case might render Mr. Bla ckwell’s claim moot. The court granted a continuance to Mr. Blackwel l, in order for him to be represented by counsel at the hearing. The court’s Orde r also directed both parties to brief the questions of whether-3-

the claim filed by

Mr. Blac kwell wa s a prope

r claim a gainst M s. Cunningham’s estate, and if so, whether the claim was timely filed. Appa rently, no other he aring wa s co nducted, but the parties submitted their briefs, and the probate court issued its ruling on June 18, 2001. The court’sorder containedno findings of fact, but stated that Mr. Blackwe ll’s petition was well-taken, and awarded him a judgment in the amount of $7,731.93 against the estate of Ms. Cunningham. This appeal followed. III. P ROOF ON A PPE AL The only appellate brie

f filed in this case was that of Mr. Pitts. Our decision must therefore be based solely on the re

cord and on the appellant’s brief. See Tenn. R. App. P. 29(c). The record does not include the briefs that the parties submitted to the probate court, nor does it con t ain any evidenc e of Mr. B lackwell’s clai m other tha n his late- filed cla

im form. Tenn. Code Ann. § 30-2-307 (b) req uires cla imants against decedents’ estates to file ver ified proof of their claims at

the time of filing such claims. As we stated above, Mr. Bla ckwell included no such proof whenhis claim was filed, and he did not offer any documentation at the one hearing of this case. There is thus absolutely no evidence in the record before us that Ms. Cunningham’s estate is indebted in any a mount to the Johnson/Blackwell funeral home. We are aware that the amount of Mr. Blackwell’s purported claim is identical to the amount of burial ins urance

that the p robate c ourt orde

red be r estored to the esta

te of Helen West, but the link between that insurance and Ms. Cunningham’s estate is just not evident from the recor d. I f Mr

. Blackw ell somehow managed to point to relevant evidence in h is trial brief , we do not have the benefit of that evidence. Further, even if M

r. Blac kwell had establish ed the va lidity of his claim, it

is not at all clear how he could ha ve ove rcome the statutor y tim e limits pla

ced upon claimant s or cre ditors ag ainst decede nts’ estates. Tenn. Code Ann. § 30-2-307(a) require s that claims be filed within four months from the date of notice to creditors. Further, Te nn. Code Ann. § 30-2-310(a) reads, All claims and demands not filed with the probate court clerk, as re quire d by the provisions of §§ 30-2-306 -- 30-2-309, or, if later, in which suit shall not have been brought or reviv ed befor

e the end of twelve (12) mont

hs from the

date of death of the decedent, shall be forever barr ed. An important

reason f or such st

rict ti me limits is to promote the timely settlement of decede nts’ estates. Mr. Blackwell did not even fil e his cla im until twe

nty months af

ter Ms. Cunningham’s death, yet the tria l court deci de d that he was entitled to judgment. Although we cannot explain the trial court’s puzzling decision, it is our duty to rever se it.-4- IV. The order of

the trial court is r everse d. Remand

this caus e to the Prob ate Court of Fran klin County for further

proceedings consistent with this opinion. Tax the costs on appeal to theappellee, Floyd R. Blac

kwell.

_________________________________________ BEN H. CA

NTREL L, PRESI DIN G JUDGE, M. S.