IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

Assigned on Briefs June 4, 2024

RORY MILLS SULLIVAN v. ANNEMARIE CULP ALLEN, 

INDIVIDUALLY, AND AS TRUSTEE FOR THE TOMMY RAY ALLEN 

AND ANNEMARIE CULP ALLEN REVOCABLE TRUST ET AL.

Appeal from the Probate Court for Shelby County

No. PR025495 Joe Townsend, Judge

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No. W2023-01357-COA-R3-CV

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This appeal follows the dismissal of a proceeding brought in probate court. Because we 

cannot discern the basis for the trial court’s decision in the two orders that are at issue, we 

vacate both orders and remand for further proceedings consistent with this Opinion.

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

Vacated and Remanded

ARNOLD B. GOLDIN, J., delivered the opinion of the court, in which FRANK G. CLEMENT,

JR., P.J., M.S., and JOHN W. MCCLARTY, J., joined.

Carol A. Molloy, Fitchburg, Massachusetts, for the appellant, Rory Mills Sullivan.

Bryan M. Meredith and Jimmylee J. Hood, Memphis, Tennessee, for the appellee, Kenneth 

Lee, Trustee for the Tommy Ray Allen and Annemarie Culp Allen Revocable Trust.

OPINION

This appeal concerns the dismissal of a proceeding brought by appellant Rory Mills 

Sullivan in the Probate Court of Shelby County (“the Probate Court”). Due to our 

disposition herein, only a brief recitation of the record is necessary.

When Mr. Sullivan filed his original petition in this matter, he sued Annemarie Culp 

Allen, both individually and in her capacity as trustee of The Tommy Ray Allen and 

Annemarie Culp Allen Revocable Trust (“the Trust”). However, Ms. Allen died shortly 

after Mr. Sullivan filed his petition. Thereafter, Mr. Sullivan filed an amended petition 

adding Kenneth Lee, as trustee for the Trust, as a defendant. In relevant part, Mr. Sullivan 

petitioned the Probate Court to remove Mr. Lee as trustee of the Trust, to set aside a sale 

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of property held by the Trust, and to request a conservatorship for the Estate of Ms. Allen. 

Following the commencement of litigation against him, Mr. Lee filed an answer denying, 

among other issues, that Mr. Sullivan was entitled to any of the relief requested in his 

petition. Mr. Lee also filed a notice of deposition of Mr. Sullivan. 

On July 10, 2023, Mr. Sullivan filed a motion requesting the removal of Mr. Lee as 

trustee and for the appointment of a substitute trustee (“Removal Motion”). Shortly 

thereafter, he filed a motion for protection requesting that the Probate Court quash Mr. 

Lee’s attempts to depose him, asserting in part that the Removal Motion was a motion for 

judgment on the pleadings pursuant to Rule 12.03 of the Tennessee Rules of Civil 

Procedure. Mr. Lee then filed a response in opposition to both pending motions, 

contending that the Removal Motion relied upon an affidavit submitted by Mr. Sullivan 

and therefore could not be considered a motion for judgment on the pleadings. 

Following a hearing, the Probate Court entered an order denying Mr. Sullivan’s motion for 

protection and request to remove Mr. Lee as trustee, stating:

This cause came to be heard on July 28, 2023 upon Petitioner Rory Mills 

Sullivan’s Motion to Remove Trustee with a Concurrent Motion for the 

Appointment of a Substitute Trustee, and Motion for Protection. Based on 

the Motions, the Response filed by Respondent Kenneth Lee, and statements 

of counsel, the Court finds that the Motions should be denied as they fail to 

comply with the Tennessee Rules of Civil Procedure.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that 

Petitioner’s Rory Mills Sullivan’s Motion to Remove Trustee with a 

Concurrent Motion for the Appointment of a Substitute Trustee and Motion 

for Protection are hereby denied.

The Probate Court provided no meaningful reasoning to support its determination, even 

failing to reveal any insight whatsoever as to what rules of civil procedure had supposedly 

not been complied with by Mr. Sullivan. 

Subsequently, Mr. Sullivan filed a motion for summary judgment requesting the 

removal of Mr. Lee as trustee and appointment of a substitute trustee, and of note, Mr. Lee 

filed a motion requesting that the Probate Court set the case for trial. A hearing concerning 

Mr. Lee’s motion to set the case for trial was heard on September 12, 2023, during which 

the Probate Court apparently determined sua sponte that Mr. Sullivan’s action should be 

dismissed in its entirety. The court entered an order reflecting this determination, stating:

This cause came to be heard on September 12, 2023 upon Respondent 

Kenneth Lee’s Motion to Set Case for Trial. Based on the record as a whole, 
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the Court finds that there is no cause of action in this case properly before 

the Court pursuant to the Tennessee Rules of Civil Procedure.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that this 

case is hereby dismissed and closed; and that the Clerk of this Court shall not 

accept any additional pleadings under this Docket number.

Again, the Probate Court provided no reasoning to support its determination. As a result, 

we cannot discern the factual and/or legal basis as to why the case was dismissed. 

In the present appeal before us, which followed the Probate Court’s dismissal, both 

orders highlighted above are put at issue through the parties’ briefing. Given the current 

state of these orders, we conclude that any meaningful review of the trial court’s actions is 

not possible. Indeed, as is evident from our brief discussion of these orders, they are bereft 

of any explanation as to why the Probate Court reached the dispositions it did. Again, to 

return to the first order we highlighted above, although the Probate Court grounded its 

denial of the motions at issue therein upon an alleged failure to comply with the Tennessee 

Rules of Civil Procedure, it did not even identify any particular procedural rule, nor did it 

otherwise explain how Mr. Sullivan had been noncompliant. 

Moreover, the attachment of Mr. Sullivan’s affidavit to the Removal Motion 

undermines his assertion that it was, in that form, a motion for a judgment on the pleadings. 

Here, the Probate Court should have either excluded the affidavit or treated the Removal 

Motion “as one for summary judgment[.]” Tenn. R. Civ. P. 12.03. However, the Probate 

Court’s first order fails to indicate whether the court considered the Removal Motion as 

one for summary judgment, or if it disregarded Mr. Sullivan’s affidavit and treated it as a 

motion for judgment on the pleadings. As a consequence, we are unable to discern whether 

Mr. Sullivan’s supposed noncompliance—assuming some other rule of civil procedure was 

not in the contemplation of the Probate Court—related to a motion under Rule 12.03 or 

Rule 56 of the Tennessee Rules of Civil Procedure. 

This theme regarding a lack of specificity and clarity continued in the later dismissal 

order, with Mr. Lee even candidly remarking on appeal that the Probate Court “did not set 

forth in its Order of Dismissal the legal authority or reasoning for its sua sponte dismissal 

of the Amended Petition, other than that ‘there is no cause of action in this case properly 

before the Court pursuant to the Tennessee Rules of Civil Procedure.’” Indeed, we cannot 

discern from the content of the order why the Probate Court decided to dismiss the case. In 

our view, the lack of clarity is further compounded here given that the Probate Court 

dismissed Mr. Sullivan’s petition sua sponte, without any pending motion to dismiss, as

the order of dismissal was entered following a hearing on Mr. Lee’s motion to set the case 

for trial. Although trial courts can act to dismiss a case sua sponte, the practice is not 

encouraged under the law. See, e.g., Huckeby v. Spangler, 521 S.W.2d 568, 571 (Tenn. 

1975). Further, “[t]he trial court’s burden . . . is much higher when dismissing a complaint 
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sua sponte.” Carnett v. PNC Bank, NA, No. W2015-01677-COA-R3-CV, 2016 WL 

402495, at *6 (Tenn. Ct. App. Feb. 2, 2016). “At a minimum, the court must state the 

reasons for the dismissal in its order.” Justice v. Nelson, No. E2018-02020-COA-R3-CV, 

2019 WL 6716300, at *5 (Tenn. Ct. App. Dec. 10, 2019).

Unfortunately, here, the Probate Court’s order dismissing Mr. Sullivan’s petition is 

so devoid of reasoning that we are unable to discern whether the power of dismissal was 

exercised appropriately. Under the circumstances discussed above, we conclude that it is 

necessary to vacate both of the orders mentioned and we hereby remand the case for further 

proceedings consistent with this Opinion.

 s/ Arnold B. Goldin 

ARNOLD B. GOLDIN, JUDGE