IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

February 24, 2021 Session

IN RE ESTATE OF DOROTHY JEAN MCMILLIN

Appeal from the Chancery Court for Knox County

No. 189858-2 Clarence E. Pridemore, Jr., Chancellor

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No. E2020-00413-COA-R3-CV

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On behalf of the estate of his mother, one son, as substitute personal representative, filed 

suit against his brother, the previous personal representative, seeking return of funds

alleged to be missing from the decedent’s accounts. Upon summary judgment, the trial 

court found in favor of the defendant, the initial administrator of the estate. We reverse and 

remand for trial.

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

Reversed; Case Remanded

JOHN W. MCCLARTY,J., delivered the opinion of the court, in which D. MICHAEL SWINEY, 

C.J., and KRISTI M. DAVIS, J., joined.

Bruce T. Hill, Sevierville, Tennessee, for the appellant, Estate of Dorothy Jean McMillin.

Thomas M. Leveille, Knoxville, Tennessee, for the appellee, Paul L. McMillin.

OPINION

I. BACKGROUND

Dorothy Jean McMillin (“Decedent”), the mother of both plaintiff James McMillin 

(“James”) and defendant Paul McMillin (“Paul”), lived at 3600 Guinn Road in Knoxville, 

Tennessee, on property consisting of approximately six acres. By early 2012, Decedent 

was experiencing various health problems. 

On June 7, 2012, Paul drove Decedent to attorney Robert Wilkinson’s office, at 

04/01/2021
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which time Decedent requested that new estate plans be prepared.

1 After leaving Mr. 

Wilkinson’s office, Paul drove Decedent to Regions Bank, at which time he accompanied 

his mother into the bank and she changed her account from an individual account owned 

solely by Decedent to a joint account owned by Decedent and Paul with a right of 

survivorship. Three weeks later, Paul drove Decedent to Y-12 Credit Union, at which time

Decedent likewise changed her account from an individual account owned solely by 

Decedent to a joint account owned by Decedent and Paul with a right of survivorship.2

On June 20, 2012, Decedent signed a new Last Will and Testament, appointing Paul 

as the new personal representative of her estate. Pursuant to the language of Decedent’s 

will, Paul was to distribute Decedent’s property equally among her beneficiaries, share and 

share alike. On the same day, Decedent also signed a Durable Power of Attorney, naming 

Paul as agent-in-fact. According to Paul, Decedent thereafter requested that he build a new 

house for her on the existing property. Decedent passed away on November 18, 2012, prior 

to the completion of the home.

Paul was issued Letters Testamentary to administer his mother’s Estate on 

December 21, 2012. He continued to use the money from the joint bank accounts to 

construct the house. Upon opening an Estate account with SunTrust, Paul issued checks to 

each of the four sibling beneficiaries whereby each received $100,000. These checks were 

issued in September 2013. The funds in the Estate account were originally held in 

Decedent’s Vanguard account with a balance of approximately $577,897.03.

Two of Decedent’s four children, Iris Davenport and James,3filed suit against Paul

and his wife Johneta McMillin, in their individual capacities, for exercising undue 

influence over Decedent in an attempt to wrongfully enrich themselves. According to the 

complaint, Paul obtained access to a sum total of $615,055.45 from Decedent (the assets 

in the joint accounts). They requested that judgment be made on behalf of Decedent’s 

Estate.

At the February 25, 2014 jury trial, Paul did not deny that he obtained the money 

from his mother. He testified as follows:

Q: A grand total of $615,055.45; does that sound about like the total amount 

that you received from those two accounts?

A: It could have been, yes, sir.

 

1Her prior will named James to serve as personal representative.

2According to Paul, Decedent believed that James and Iris wanted to put her in a nursing home and 

use her money to pay for it.

3Linda Cole is the fourth sibling.
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Paul further testified he spent this money, in addition to the amounts claimed in the present 

matter, on the construction of Decedent’s home:

A: The monies, all of the monies that I have taken out of Regions and Y-12

has been spent on that house.

Q: And you’re telling the Court and the Jury that money that came out of 

those accounts was used to build that house?

A: Absolutely.

An appraisal of the home at the time of that trial reflected a market value of $320,000. The 

jury rendered a verdict against Paul and his wife in the amount of $284,800.4It is apparent 

that the jury subtracted the appraised value of the house from the $615,055.45 that Paul 

obtained from his mother prior to her death, plus some apparent minor adjustments. This 

court explained the verdict in this manner as demonstrated below:

Paul admitted that the house had been appraised at a value of approximately 

$320,000. He provided no explanation for the disposition of the balance of 

the $615,000, except to state that he withdrew cash for Decedent’s use in 

paying her bills at her direction. The jury’s verdict of $284,800 reflects the 

approximate difference between the $615,000 removed by Paul from the 

Decedent’s accounts and the appraised value of the new home. Upon careful 

review of the record, we conclude that there is material evidence to support 

the jury’s verdict both in substance and amount, and the verdict must be 

affirmed.

As administrator of the estate, Paul had the duty to collect the judgment against 

himself on behalf of the Estate. Due to the obvious conflict of interest, on May 23, 2014, 

Knox County Chancellor Michael Moyers removed Paul as the personal representative and 

replaced him with the designated successor personal representative, James. 

After assuming the duties as personal representative, James discovered that 

$577,897.03 from Decedent’s Vanguard account had been deposited into the Estate’s

SunTrust account by Paul. From the account, Paul had issued $100,000 checks to each 

beneficiary, leaving $177,897.03 as the balance in the account. However, when James took 

over, the $177,897.03 was no longer in the account. 

On behalf of the Estate, James filed suit against Paul to recover the $177,897.03.

The first lawsuit against Paul and his wife, in their individual capacities, did not address 

 

4Final Judgment entered March 4, 2014. Affirmed by this court on March 31, 2015, No. E2014-

00497-COA-R3-CV.
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Paul’s activities as personal representative. Paul answered the new complaint by citing a 

provision under Decedent’s will and claiming that he had broad discretion on how to spend 

the Estate’s assets. 

Between March 2013, the date that the house was listed for sale with a licensed real 

estate broker, and May 2015, the best offer from a qualified buyer was for $275,000 for 

the new construction plus $5,000 for an additional one acre. This sum was $40,000 below 

appraised valued, as the construction of the house was incomplete. Tammy Garber, the 

licensed real estate agent who listed the property, stated in an affidavit that “at the time of 

the sale” the property “was uninhabitable, requiring significant work to bring it up to code.” 

An appraisal estimated the cost to complete the construction at $59,455; it further indicated 

that “a large sinkhole on the property . . . negatively affected the marketability of the 

property.”

James, in his capacity as successor personal representative, sought and received 

court approval to sell the house ($275,000) and a one acre adjoining lot ($5,000) for the 

sum of $280,000, because the Estate had insufficient funds to complete the construction of 

the home. Relying upon this order, the property was sold on September 23, 2015, for 

$280,000. The adjacent “old home,” with significant mold problems,

5 was sold for 

$153,000; there were no objections filed by any beneficiaries, including Paul.

After Paul acknowledged in a deposition that he spent the additional $177,897.03 

on building the house, the Estate filed a motion for summary judgment. Paul’s defense in 

the prior jury case had been the same--that he spent all of the funds in Decedent’s accounts 

($615,055.45) to build the house. Now, including these additional funds, Paul claimed that 

he spent $792,952.48 to build an uncompleted house that sold for $275,000. Taking the 

facts in a light most favorable to Paul, the Estate argued that Paul had breached his fiduciary 

duty and wasted the Estate’s assets. The Estate asserted that Paul should be estopped from 

claiming the money that had been spent on the construction of the house, as the jury in the 

prior case had already determined what credit he was entitled to receive for the house. 

Additionally, the Estate argued that Paul breached his fiduciary duties by failing to provide 

a full inventory and accounting of his expenditures during his tenure as the personal 

representative, as ordered by the probate court. James contended that he was unable to 

discover the misappropriation sooner due to Paul’s failure to abide by the probate court’s 

ruling.

There was no trial in this case. Rather, the trial court made a final ruling based on 

competing motions for summary judgment. The trial court ruled in Paul’s favor, finding 

that he was not restrained in how he spent the Estate’s assets. The court ruled, in relevant 

part, as follows:

 

5According to Garber’s affidavit, the estimate to remediate the mold issue was “as much as 

$30,000.”
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Prior to her death, [Decedent] requested that Defendant Paul McMillin build 

a new house for her on the land adjacent to her then older house. Pursuant to 

her request, Paul began building the house prior to her death.

After [Decedent] passed away on November 13, 2012, Defendant Paul 

McMillin continued to build the new house located at 3602 Guinn Road ....

The Last Will and Testament of [Decedent] . . . granted the personal 

representative the full authority and discretion to improve and “deal with” 

real property along with “the continuing, absolute, discretionary power to 

deal with any property, real or personal, held in any trust, as freely as I might 

in the handling of my own affairs.”

“The Will” also granted the Personal Representative the power and authority 

to “make repairs, replacements, and improvements, structural or otherwise, 

to any such real estate.” 

“The Will” further provides that “unless a fiduciary acts capriciously and 

arbitrarily, my estate or a trust shall indemnify the fiduciary for all expenses 

(including attorney fees) which he or she incurs or expends or which arises 

from the exercise of his or her discretion.”

* * *

On April 1, 2014, Jessica Vinsant made a written offer to purchase the 

“house” for . . . $495,000 ....

At that time, it was the opinion of Defendant Paul McMillin that the “house” 

was worth at least . . . $495,000 ....

The “house” was subsequently sold by Plaintiff James McMillin when he 

became successor Personal Representative, for the sum of . . . $280,000 ....

The “house” was sold “as is” when it could have been completed with the 

expenditure of additional funds from the estate.

The realtor who listed the “house” recommended that the Personal 

Representative complete the house.

Plaintiff James McMillin testified that he decided not to finish the house 

before selling it, and that it was his decision not to do so.
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When Defendant Paul McMillin expended the . . . $177,000 . . . on the house 

located at 3602 Guinn Road, he did it because he believed that the 

expenditure of those funds on the “house” was in the best interests of the 

Estate and in the best interest of the beneficiaries of “The Will.”

Defendant Paul McMillin expended the funds in the good faith belief that it 

was appropriate to do so to get the best value out of the “house.”

The “house” was sold for . . . $280,000 . . . by Plaintiff James McMillin as 

the Personal Representative of the Estate.

The “house” was subsequently sold by the purchaser on October 31, 2017, 

for . . . $467,500 ....

* * *

Plaintiff James McMillin has not made any claim that there was defective 

construction in relation to the “house.”

Defendant Paul McMillin has testified that the approximate . . . $177,000 . . 

. in question was utilized solely in relation to the “house.”

Plaintiff James McMillin has testified that he does not have any knowledge 

and is not aware of any evidence that would reflect that Defendant Paul 

McMillin spent the . . . $177,000 . . . on anything other than the house at 3602 

Guinn Road.

Therefore, this Court is of the opinion that Defendant’s Motion for Summary 

Judgment shall be GRANTED ....

The Estate filed a motion seeking an interlocutory appeal of the rulings, arguing that 

it was a waste of judicial resources to rule on Paul’s claim for attorney fees until the appeal 

was resolved. The trial court denied that motion and opted to issue a final order reserving 

the attorney fee request. This timely appeal ensued.

II. ISSUES

The issues raised on appeal are restated as follows:

1. Whether the order before this court is final and appealable (raised by this 

court, sua sponte).
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2. Whether the trial court erred in granting summary judgment to Paul,

finding no genuine issues of material fact as to his actions in spending the 

Estate’s funds without applying the prudent investor rule or making requisite 

findings of fact and conclusions of law.

3. Whether the trial court erred in denying the Estate’s motion for summary 

judgment in light of undisputed facts and undisputed testimony of Paul that 

he spent $792,952.48 on the construction of a house that had an appraised 

value of $320,000 (but sold for $275,000).

4. Whether the trial court’s denial of summary judgment was proper without 

making requisite findings of fact and conclusions of law.

5. Whether Paul is entitled to an award of attorney fees on appeal pursuant 

to the will.

III. STANDARD OF REVIEW

Rule 56.04 of the Tennessee Rules of Civil Procedure states that a motion for 

summary judgment should only be granted if “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that there 

is no genuine issue as to any material fact and that the moving party is entitled to a judgment 

as a matter of law.” The standard of review following a trial court’s decision on a motion 

for summary judgment is de novo with no presumption of correctness. Tatham v. 

Bridgestone Ams. Holding, Inc., 473 S.W.3d 734, 748 (Tenn. 2015) (citing Parker v. 

Holiday Hospitality Franchising, Inc., 446 S.W.3d 341, 346 (Tenn. 2014)).

When reviewing the evidence, this court must determine whether any factual 

disputes exist. Byrd v. Hall, 847 S.W.2d 208, 211 (Tenn. 1993). If a factual dispute exists, 

it must determine whether the fact is material to the claim or defense upon which the 

summary judgment is predicated and whether the disputed fact creates a genuine issue for 

trial. See Rye v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 265 (Tenn. 

2015); Byrd, 847 S.W.2d at 211.

The moving party who does not bear the burden of proof at trial “may satisfy its 

burden of production either (1) by affirmatively negating an essential element of the 

nonmoving party’s claim or (2) by demonstrating that the nonmoving party’s evidence at 

the summary judgment stage is insufficient to establish the nonmoving party’s claim or 

defense.” Rye, 477 S.W.3d at 264. If the moving party satisfies the burden of production, 

the nonmoving party must respond by setting forth “specific facts showing that there is a 

genuine issue for trial.” Tenn. R. Civ. P. 56.06. In evaluating the evidence in the summary 

judgment context, we must view the evidence in the light most favorable to the nonmoving 

party, and the court must draw all reasonable inferences in favor of that party. Cumulus 
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Broad, Inc. v. Shim, 226 S.W.3d 202, 373-74 (Tenn. 2007); Abbott v. Blount Cnty., 207 

S.W.3d 732, 735 (Tenn. 2006). Once the moving party demonstrates that there is no 

genuine issue of material fact, the nonmoving party must then prove, via affidavits or 

discovery materials, there is a genuine, material factual dispute to warrant a trial. Fowler 

v. Happy Goodman Family, 575 S.W.2d 496, 498 (Tenn. 1978); Merritt v. Wilson Cnty.

Bd. of Zoning Appeals, 656 S.W.2d 846, 859 (Tenn. Ct. App. 1983). In this regard, Rule

56.05 provides that the nonmoving party cannot simply rely upon its pleadings and must 

set forth specific facts showing that there is a genuine issue of material fact for trial. “If he 

does not so respond, summary judgment . . . shall be entered against him.” Id.; Byrd, 847 

S.W.2d at 211.

Once the moving party makes a properly supported motion for summary judgment, 

the burden shifts to the defendant to: (1) point to evidence establishing material factual 

disputes; (ii) rehabilitate the evidence attacked by the moving party; (iii) produce additional 

evidence establishing the existence of a genuine issue for trial; or (iv) submit an affidavit 

explaining the necessity for further discovery. Tenn. R. Civ. P. 56.06. Accordingly, the 

nonmoving party cannot simply claim that he/she might be able to come up with something 

at trial to negate an element of the moving party’s claim at trial.

IV. DISCUSSION

a.

Upon our review of the procedural posture of this case, we find that this court has 

jurisdiction to consider this appeal: “Tenn. R. Civ. P. 54.02 is an exception to Rule 3 that 

permits the trial court, without permission from the appellate court, to certify an order as 

final and appealable, even if parts of the overall litigation remain pending in the trial court.” 

Johnson v. Nunis, 383 S.W.3d 122, 130 (Tenn. Ct. App. 2012). It states that a trial court 

may certify as final an order that may direct the entry of a final judgment “as to one or 

more but fewer than all of the claims or parties” that is, certify an order that resolves an 

entire claim as to all parties or resolves all claims as to a particular party. Shofner v. 

Shofner, 181 S.W.3d 703, 713 (Tenn. Ct. App. 2004). It allows “the trial court to convert 

an interlocutory ruling into an appealable order.” Mann v. Alpha Tau Omega Fraternity, 

380 S.W.3d 42, 49 (Tenn. 2012).

In this case, the Estate sought a money judgment against Paul. That claim was 

completely disposed of by the trial court’s grant of summary judgment to Paul. The Estate 

has no other pending issues before the trial court. The court properly certified in its order, 

“[T]here is no just cause for delay, and the clerk of the court is directed to enter this final 

judgment,” as required under Rule 54.02. 
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b.

The construction of a will is a matter of law that we review de novo with no 

presumption of correctness. In re Estate of Vincent, 98 S.W.3d 146, 148 (Tenn. 2003). 

“The basic rule in construing a will is that the court shall seek to discover the intention of 

the testator, and will give effect to it unless it contravenes some rule of law or public 

policy.” Daugherty v. Daugherty, 784 S.W.2d 650, 653 (Tenn. 1990). Pursuant to the 

language of Decedent’s will, the personal representative was to distribute the assets equally 

among the four beneficiaries, share and share alike. Other relevant provisions of the will 

provide as follows:

ITEM VI

AUTHORITY TO ADMINISTER REAL PROPERTY

My Personal Representative shall have full authority and discretion to 

convey, improve, lease, encumber, or in any other manner deal with and 

administer any real property comprising an asset of my estate, without the 

approval of any court, the joinder of any beneficiary, or the disclosure of the 

identity of any beneficiary of my estate. Furthermore, for purposes of 

Tennessee Code Annotated, Section 31-2-103, all such real property shall be 

deemed to be personal property following my death, subject to sale by the 

Personal Representative acting without joinder of any beneficiary, for the 

purpose of facilitating the distribution of my estate among the beneficiaries 

of this Will, as well as for the purpose of paying taxes, administrative 

expenses, and any other expenses or debts of my estate, without first being 

required to exhaust all other personal property of my estate.

* * *

ITEM X

POWERS OF PERSONAL REPRESENTATIVE

I hereby grant to my Personal Representative (including any substitute or 

successor Personal Representative) the continuing, absolute, discretionary 

power to deal with any property, real or personal, held in any trust, as freely 

as I might in the handling of my own affairs. Such power may be exercised 

independently and without the prior or subsequent approval of any court or 

judicial authority, and no person dealing with my Personal Representative 

shall be required to inquire into the propriety of any of his or her actions....
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ITEM XI

INDEMNITY OF FIDUCIARY

Unless a Fiduciary acts capriciously and arbitrarily, my estate or a trust shall 

indemnify the Fiduciary for all expenses (including attorney fees) which he 

or she incurs or expends or which arises from the exercise of his or her 

discretion.

The duties of an estate’s personal representative include “managing the decedent’s 

estate.” In re Estate of Darken, No. M2016-00711-COA-R3-CV, 2016 WL 7378806, at *6 

(Tenn. Ct. App. Dec. 10, 2016). A personal representative occupies “a fiduciary position 

and, therefore, must deal with beneficiaries of the estate in utmost good faith.” Id. (citing 

In re Estate of Ladd, 247 S.W.3d 628, 637 (Tenn. Ct. App. 2007). A fiduciary is obligated 

to exercise loyalty and honesty in administering his or her duties. Roberts v. Iddins, 797 

S.W.2d 615 (Tenn. Ct. App. 1990); Knox-Tenn Rental Co. v. Jenkins Ins., Inc., 755 S.W.2d 

33 (Tenn. 1988). 

The Estate contends that as a fiduciary of Decedent’s estate, Paul had an affirmative 

duty to amass and preserve Decedent’s assets and exercise the “same degree of diligence 

and caution that reasonably prudent business persons would employ in the management of 

their own affairs.” See Estate of Locke v. Garthright, No. 1, 1991 WL 276801, at *4 (Tenn. 

Ct. App. Dec. 31, 1991) (citing In re Estate of Inman, 588 S.W.2d 763, 767 (Tenn. Ct. 

App. 1979); In re Estate of Cuneo, 475 S.W.2d 672, 676 (1971)); Coffee v. Ruffin, 44 Tenn. 

487, 517 (Tenn. 1867) (cited in In Re Estate of Schorn, No. E2013-02245-COA-R3-CV, 

2015 WL 1778292 (Tenn. Ct. App. Apr. 17, 2015). The obligations in handling an estate 

are as follows:

In the custody, management and disposition of the estate committed to the 

charge of a personal representative, that person is bound to demonstrate good 

faith and to exercise that degree of diligence, prudence, and caution which a 

reasonably prudent, diligent and conscientious business person would

employ in the management of their own affairs of a similar nature.

In re Estate of Inman, 588 S.W.2d at 767 (quoting Pritchard on Wills and Administration 

of Estates, § 95 (3d ed. 1955), McFarlin v. McFarlin, 785 S.W.2d 367, 369-70 (Tenn. Ct. 

App. 1989).

In order to recover for a breach of fiduciary duty, “a plaintiff must establish: (1) a 

fiduciary relationship, (2) breach of the resulting fiduciary duty, and (3) injury to the 

plaintiff or benefit to the defendant as a result of that breach.” Mitchell v. Morris, No. 

E2015-01353-COA-R3-CV, 2016 WL 890212, at *9 (Tenn. Ct. App. Jan. 6, 2016) (citing 
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Ann Taylor Realtors, Inc. v. Sporup, No. W2010-00188-COA-R3-CV, 2010 WL 4939967, 

at 3 (Tenn. Ct. App. Dec. 3, 2010)).

Paul argues that this case should be viewed from his subjective “perspective” of 

what was in the best interest of the Estate. He claims that he had “freely” exercised the 

broad “full” and “absolute” authority that he had been granted under the will. He asserts 

that the decision to continue to work on the house after Decedent’s death was made in good 

faith and was not arbitrary and capricious. He contends that he believed the expenditure 

of the funds on the house was in the best interest of the Estate and the beneficiaries to get 

the best value out of the house.

Notwithstanding what the jury has already determined, Paul stated under oath in a 

deposition in the present case that the $177,897.03 (in addition to the $615,055.45 in the 

2014 case) was spent on building Decedent’s home: 

Q: Where was the 177 thousand dollars deposited?

A: In the SunTrust.

. . .

Q: And you don’t know what these monies were used for other than to build 

the house once you deposited it into the estate?

A: Yes, I know exactly what they were used for.

Q: And that is?

A: A hundred thousand dollars to four different beneficiaries.

Q: Right.

A: And the rest was used for writing checks on these to build the house.

In response to the Estate’s argument that the earlier jury “already ruled upon what Paul 

McMillin is to be credited with spending on the construction of the house,” Paul argues

that the final judgment in the prior lawsuit was a general verdict of the jury that did not 

make specific findings of fact. He contends that finding does not meet the elements of 

either res judicata or collateral estoppel.

In the view of the Estate, Paul’s waste of the funds provided ample proof to the trial 

court that Paul violated the relevant standard, especially when it is recalled that the jury 

found that Paul and his wife converted hundreds of thousands of dollars from Decedent. 
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According to the Estate, even if the trial court believes that Paul spent the assets in good 

faith, the court failed to apply a “prudent manager” standard to determine whether the 

expense of $792,952.48, to build a home that only sold for $275,000 was “prudent.” The 

Estate further contends that the trial court abused its discretion in overruling the summary 

judgment motion without providing any findings of fact or conclusions of law. 

Our review reveals disputed issues of material facts that need to be addressed. 

Despite Paul’s claims about higher offers to purchase the property, the Estate maintains 

that the real properties at 3600 and 3602 Guinn could not have been repaired, improved, or 

completed for sale with only relatively modest expenditures of additional funds.6 The 

record before us indicates insufficient funds remained in the Estate account to fix the 

problems. Immediately preceding the approval of the sale by the Chancery Court, the 

Estate’s checking account reflected a balance of $2,305.66, which would have done little 

toward resolving the remaining issues.

7 The Estate notes that Paul was overruled in his 

opposition to the sale of the property at 3602 Guinn Road by Chancellor Moyers. Further, 

the Estate recalls that Paul explicitly agreed to the sale of 3600 Guinn Road for $153,000

with no objection. However, the trial court did not appear to consider these prior rulings. 

Additionally, it made no mention of the following specific finding from a Master’s Report 

of April 9, 2015:

While there may be a difference of opinions about the construction 

deficiencies and existence of a sinkhole, the Clerk and Master reports that 

there is no dispute that the liquid assets in this estate are less than $3,000, 

that Paul is not going to pay the judgment (in favor of the Estate against Paul 

of $284,800), that the real estate taxes are delinquent, that the dwelling is 

incomplete and that insurance premiums in excess of $3,000 are coming due 

and payable.

Paul also urged the trial court to ignore the appraisal, jury verdict, and ultimate sale 

price of the 3602 Guinn Road property and look at a future sale price. The individual who 

bought the property from the Estate pursuant to the court order of May 12, 2015, 

purportedly sold the property 2.5 years later (October 31, 2017) for $467,500. However, it 

is unknown the expenses the buyer incurred to make the necessary repairs and to complete 

the construction in order to sell it for that amount. Thus, as argued by the Estate, reliance 

upon this speculative information by the trial court was improper.

Further, the court’s ruling does not appear to have considered the undisputed fact of 

 

6The new house, known as 3602 Guinn Road, and the original house, at 3600 Guinn Road, are both 

located on a tract of land containing approximately six acres. The tract was not subdivided to meet Knox 

County code requirements for the sale of a new dwelling.

7Paul claims that the $400,000 distributed to the beneficiaries was still “available” and could have been 

used to complete the unfinished house. 
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the total amount of money Paul claims he spent on building the incomplete house. The trial 

court seems to have neglected consideration of the Estate’s brief and exhibits. A review of 

the trial court’s memorandum reflects no analysis of the Estate’s position.

Accordingly, we do not find that the record supports the trial court’s entry of 

summary judgment. We must reverse and remand for trial. 

c.

Paul has moved for an award of attorney fees in the amount of $28,636.24 and 

expenses of $44.50. He also requests attorney fees on appeal. He contends that an award 

of expenses including attorney fees is warranted pursuant to Decedent’s will. In that we 

are reversing and remanding this matter for a trial, however, no attorney fee request is ripe 

at this time. 

V. CONCLUSION

For the reasons stated, we reverse the decision of the trial court and remand for 

further proceedings consistent with this opinion. Costs on appeal are assessed to the 

appellee, Paul McMillin.

_________________________________

JOHN W. MCCLARTY, JUDGE