Estate of Divinny v. Wheeler Bonding Co.

• Court: Court of Appeals of Tennessee
• Decided: March 31, 2000
• Docket: M1999-00678-COA-R3-CV
• Status: Published

Opinion

IN THE COURT OF APPEALS AT NASHVILLE

ESTATE OF ) FILED M1999-00678-COA-R3-CV JACKSON BROWN DIVINNY, ) DAVIDSON COUNTY ) Circuit No: March 31, 2000 Appellee, ) 98P1225 ) Cecil Crowson, Jr. v. ) Appellate Court Clerk ) WHEELER BONDING COMPANY, INC., ) ) Appellant. )

APPEALED FROM THE PROBATE COURT OF DAVIDSON COUNTY

THE HONORABLE FRANK G. CLEMENT, JR., PROBATE JUDGE

Joel H. Moseley Moseley & Moseley Attorneys at Law, P.C. Suite 300, One Church Street 101 Church Street Nashville, TN 37201

Attorney for Appellant

Peggy D. Mathes 214 Second Avenue North, Suite 105 Nashville, TN 37201

Attorney for Appellee

REVERSED AND REMANDED

Houston M. Goddard, Presiding Judge

CONCUR:

SUSANO, J. SWINEY, J.

O P I N I O N Wheeler Bonding Company, Inc., the Appellant, appeals

the Davidson County Probate Court’s judgment barring its claim

against the Estate of Jackson Brown Divinny, the Appellee, as

untimely filed.

The sole issue presented by WBS is whether a claim

filed by a creditor against an estate within the period

prescribed in a published notice in accordance with Tennessee

Code Annotated § 30-2-306(c) is barred by Tennessee Code

Annotated §§ 30-2-307 or 30-2-310, when probate of the estate was

not sought until more than one year after the decedent’s death.

2 On October 1, 1995, Mr. Divinny entered into a contract

with WBC to guarantee the appearance bond for Denise M. Winn.1

Mr. Divinny’s obligation under the contract was for not only the

amount of the bond but also any expenses incurred by WBC.

When Ms. Winn failed to appear in court and WBC was

unable to locate her, a forfeit judgment in the amount of

$1,038.50 was entered against WBC. WBC paid the judgment on

April 28, 1997.

Mr. Divinny died intestate on March 10, 1997. When no

one came forward to admit Mr. Divinny’s estate to probate, WBC,

which had not been reimbursed for the judgment it had paid, filed

a complaint on August 10, 1998 pursuant to Tennessee Code

Annotated § 30-1-301 to admit Mr. Divinny’s estate to probate.

1 We have used this spelling of Ms. Winn’s name, although on the appearance bond the spelling is “Dennise Winn.”

3 WBC had reason to believe that Mr. Divinny possessed real and

personal property.

On January 8, 1999 Peggy Mathes was appointed by the

Court as the personal representative for Mr. Divinny’s estate.

By mid-January 1999, Ms. Mathes had completed the

notice to creditors required by Tennessee Code Annotated § 30-2-

306(c). WBC filed its claim on January 29, 1999, and on

February 4, 1999 Ms. Mathes filed an exception to WBC’s claim

“for failure to file sufficient evidence of the basis of said

claim and all parts thereto.”

4 In May 1999 WBC filed an amended claim with

accompanying documents in support of its amended claim.2 On May

12, 1999 the Trial Court conducted a hearing on WBC’s claim

against Mr. Divinny’s estate and Ms. Mathes’s exception to the

claim. The Trial Court denied WBC’s claim, stating “that the

claim was filed more than one year following the death of Jackson

Brown Divinny and filing for administration in Chancery under

T.C.A.§30-1-301 is not an alternative proceeding for escaping the

one-year statute prohibiting creditors from filing claims more

than one year following the death of a debtor.”

On appeal WBC argues that its claim was timely filed

and thus, should receive payment for the forfeit judgment and

other expenses it has incurred. It contends that this case

2 Both claims by WBC were filed within the six-month period of time from the date of the first publication of the notice to creditors pursuant to Tennessee Code Annotated § 30-2-306(c). The period for filing a claim was changed from six months to four months by a 1997 amendment of this statute. The amendment became effective on January 1, 1998 and applies “to all estates of decedents dying on or after January 1, 1998, and to all wills, other documents and proceedings related thereto.” Compiler’s notes, Tenn. Code Ann. § 30-2-306 (Supp. 1997).

5 involves the application of Tennessee Code Annotated §§ 30-2-307

and 30-2-310.

WBC notes that both of these statutes begin with almost

the same language. Tennessee Code Annotated § 30-2-307(a)(1)

provides that “[a]ll claims against the estate arising from a

debt of the decedent shall be barred unless filed within the

period prescribed in the notice published or posted in accordance

with § 30-2-306(c).”

Tennessee Code Annotated § 30-2-310 provides the

following:

All claims and demands not filed with the probate court clerk, as required by the provisions of §§ 30-2-306 -- 30-2-309, or, if later, in which suit shall not have been brought or revived before the end of twelve (12) months from the date of death of the decedent, shall be forever barred.

6 Tennessee Code Annotated § 30-2-306(c) provides for a

notice to creditors of a decedent. In this case, creditors

received six months from the date of the first publication of the

notice to creditors in which to file their claims against the

estate.

WBC points out that both Tennessee Code Annotated §§

30-2-307 and 30-2-310 refer to the provisions of Tennessee Code

Annotated § 30-2-306. WBC maintains that it followed the

statutory provisions, which are plain and unambiguous, regarding

the filing of its claim against Mr. Divinny’s estate. WBC

asserts that because its claim was filed with the probate court

within the prescribed period of six months, “the remaining

provisions of Tenn. Code Ann. §30-2-307, especially those

provisions which would bar the claim, do not apply. Likewise,

Tenn. Code Ann. §30-2-310 does not bar Wheeler’s claim.”

Finally, WBC notes that the Trial Court found its claim barred

“because it had not been filed within one year following the date

7 on which Mr. Divinny died as required by the two statutes.” WBC

argues that “it would have been a legal and physical

impossibility for Wheeler to file a claim within the one year

period because no estate had then been opened.”

In conclusion, WBC maintains that it filed its claim

against Mr. Divinny’s estate within six months of the published

notice under Tennessee Code Annotated § 30-2-306(c), and thus,

its claim is timely filed.

Ms. Mathes, as the personal representative for Mr.

Divinny’s estate, asserts that the Trial Court properly ruled

that WBC’s claim was not timely filed. Ms. Mathes maintains that

Tennessee Code Annotated § 30-2-307(a)(1)(B) provides that a

“creditor’s claim shall be barred unless filed within twelve (12)

months from the decedent’s date of death.”

8 Ms. Mathes notes that this Court recently analyzed

Tennessee Code Annotated §§ 30-2-306, 30-2-307, and 30-2-310 in

Roddy v. Hamilton County Nursing Home, an unreported opinion of

this Court, filed in Knoxville on March 24, 1999. This Court

noted that its holding in that case “does not address how, if at

all, the self-executing statute of limitations would apply in a

situation where an estate was first opened more than 12 months

after a decedent’s death.” Roddy, n.5.

Ms. Mathes further argues that “[i]t would be against

public policy to allow creditors to come forward at any time

after the expiration of twelve (12) months from the death of

[the] decedent demanding that an estate be opened and invoking

the Clerk’s duty to publish for creditors giving them another six

(6) [now four(4)] months to file claims against an estate.”

Therefore, Ms. Mathes maintains that because WBC did not seek to

collect a debt against Mr. Divinny’s estate until more than

twelve months after his death, it should not be permitted to use

9 Tennessee Code Annotated §§ 30-1-301 and 30-2-306 “as an

extension” of the statute of limitations of Tennessee Code

Annotated § 30-2-310.

Our review of the Trial Court’s decision, which was a

question of law, is de novo with no presumption of correctness.

Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995).

In addressing the issue before us, we note first

several rules of statutory construction helpful to our

determination this issue. In construing statutes, we are to

ascertain and give effect to the legislative intent of the

statute. Cronin v. Howe, 906 S.W.2d 910, 912 (Tenn. 1995). We

look to the statute itself and are restricted to the natural and

ordinary meaning of the language used in the statute. Browder v.

Morris, 975 S.W.2d 308, 311 (Tenn. 1998). “Where words of the

statute are clear and plain and fully express the legislature’s

10 intent, there is no room to resort to auxiliary rules of

construction.” Browder, 975 S.W.2d at 311 (citation omitted).

From our reading of the relevant statutes, we are of

the opinion that WBC followed the statutory requirements for

filing its claim against Mr. Divinny’s estate. WBC sought to

have a personal representative appointed to administer Mr.

Divinny’s estate, since no one had come forward to do so. Once

that personal representative published a notice to creditors, WBC

filed its claim and then its amended claim within the prescribed

six-month period of time. As WBC notes in its brief, the

emphasis in both Tennessee Code Annotated §§ 30-2-307 and 30-2-

310 is on requiring creditors to file their claims against an

estate within a six-month period of time.

Ms. Mathes argues that allowing creditors to wait for

more than one year after a decedent’s death to come forward with

11 claims against an estate would violate public policy. While we

are mindful of Ms. Mathes’s public policy argument, we are also

aware that by construing the relevant statutes according to her

reasoning, relatives of a decedent could avoid payment to a

decedent’s creditors by not seeking probate until a year had

elapsed. We do not believe this is what our legislature

intended.

Based on the foregoing, we reverse the judgment of the

Davidson County Probate Court and remand this cause for further

proceedings consistent with this opinion. Costs of appeal as

well as below are adjudged against the Estate of Mr. Divinny.

12 _________________________ Houston M. Goddard, P.J.

____________________________ Charles D. Susano, Jr., J.

____________________________ D. Michael Swiney, J.