Amy v. Hollars ( 1996 )

IN THE COURT OF APPEALS OF TENNESSEE
JAMES R. STROUD and ) C/A NO. 03A01-9609-CH-00307
wife, SHELBY JEAN STROUD, )
)
Plaintiffs-Appellants,)
)
)
)
)
v. )
) APPEAL AS OF RIGHT FROM THE
)
) FILED
KNOX COUNTY CHANCERY COURT
)
ESTATE OF JETER EDWARD ) December 23, 1996
WARDREP, JR., JETER E. )
WARDREP, III, BILLY E. ) Cecil Crowson, Jr.
HAMRICK, JAMES HAMRICK, ) Appellate C ourt Clerk
CAROLYN EADS, and )
JAMES C. WARDREP, )
) HONORABLE SHARON J. BELL,
Defendants-Appellees. ) CHANCELLOR
For Appellants For Appellees
DOUGLAS L. DUTTON EARL S. AILOR
AMY V. HOLLARS Knoxville, Tennessee
Hodges, Doughty & Carson
Knoxville, Tennessee
OPINION
REVERSED AND REMANDED Susano, J.
The plaintiffs, James R. Stroud and wife, Shelby Jean
Stroud, proceeding pro se,1 filed a complaint for specific
1
The plaintiffs’ counsel on this appeal was first retained after the
trial court entered its final judgment.
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performance against the co-executors of the Estate of Jeter
Edward Wardrep, Jr., and Mr. Wardrep’s heirs. They seek to
enforce a written contract between them and the deceased in which
the latter agreed to sell them property at 4001 Crestfield Road,
Knoxville. Following a non-jury hearing, the Chancellor
dismissed the complaint. The plaintiffs appealed, raising issues
that present the following questions:
1. Did the Chancellor err in dismissing the
complaint on the ground that the contract was
not properly before the court?
2. Is the failure to record the contract a
bar to a suit for specific performance
against the personal representatives of the
deceased?
I.
Facts
In the third paragraph of the complaint, the plaintiffs
allege that they and the deceased executed a contract on May 30,
1995, for the sale of the subject property. The original of the
contract was attached to the complaint and designated Exhibit A
to that pleading.
All but one of the defendants filed a joint answer in
which they responded to the third paragraph of the complaint as
follows:
They admit that Jeter Edward Wardrep, Jr.
signed a contract as identified by Exhibit A
to the complaint.
2
The joint answer goes on to state a number of defenses in
avoidance of the contract.
In a separate answer, the defendant James C. Wardrep
responded to the third paragraph thusly:
Defendant denies the allegations of paragraph
3 of the Complaint, and specifically alleges
that the contract, dated May 30, 1995, by and
between Jeter Edward Wardrep, Jr. (the
“Decedent”) and the Plaintiffs with respect
to certain real estate owned by the Decedent
located at 4001 Crestfield Road, Knoxville,
Tennessee, is invalid and unenforceable due
to the Decedent’s incompetency on the date
the contract was executed, or in the
alternative, that the contract is a product
of fraud or misrepresentation by the
Plaintiffs or undue influence upon the
Decedent by the Plaintiffs.
The Chancellor found that the defendants failed to
carry their burden of proof with respect to all of the matters
alleged as defenses in avoidance of the contract. She
specifically rejected a defense based upon the failure of the
plaintiffs to “duly register[]” the contract, finding that T.C.A.
3
§ 66-4-1022 did not preclude a decree for specific performance
against the personal representatives.
Despite finding in favor the plaintiffs on all of the
defenses in avoidance of the contract, the Chancellor concluded
that because the plaintiffs had not formally moved the court to
admit the contract into evidence, she had to find for the
defendants:
. . . the crux of the lawsuit, and that is
the contract of sale, or an authenticated
copy thereon has never been introduced into
evidence, so when Defendant argues there are
terms missing in the contract I can only say
as far as the Court knows, there are no
terms. There is no contract before the
Court. It’s unfortunate when it comes to a
technicality of that nature but law as
medicine and surveys and anything else have
to be done right, and if they’re not done
right the Court can’t do it itself. The
Court has to let people represent themselves,
so I cannot find that there should be
specific performance.
We believe the Chancellor was correct in concluding
that T.C.A. § 66-4-102 did not prevent her from decreeing
2
T.C.A. § 66-4-102 provides as follows:
The personal representative cannot be required to
execute a conveyance under the provisions of § 66-4-
101, unless the written agreement or contract, duly
registered, or a certified copy thereof from the
register’s books, is produced and delivered to the
representative.
The companion statute, T.C.A. § 66-4-101, is as follows:
In all cases of written agreements or contracts for
the conveyance of land in this state, where the person
executing the agreement or contract dies before final
conveyance is made, the decedent’s personal
representatives may execute the conveyance to the
person with whom such agreement or contract was made,
or the decedent’s heirs or assigns, according to the
forms prescribed for the conveyance of real estate.
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specific performance. However, we disagree with her conclusion
that the subject contract was not properly before her.
II.
Law
In Rast v. Terry, 532 S.W.2d 552 (Tenn. 1976), suit was
brought to set aside a tax deed. The former property owners
claimed that they did not have actual or constructive notice of
the tax sale. One of the facts alleged in the complaint was that
process as to one of the property owners had been returned by the
Sheriff marked “not to be found in my County.” Id. at 553-54.
To this allegation, the defendant responded that
[i]t is admitted . . . that the Sheriff,
being unable to serve the summons in the
matter on the Terrys, or either of them,
returned said summons marked “not to be found
in my County.”
Id. at 554. Citing Gibson’s Suits in Chancery, § 410 (5th ed.),
the Supreme Court pointed out the legal effect of the answer:
When the allegations of the complaint are
admitted in the answer the subject matter
thereof is removed as an issue, no proof is
necessary and it becomes conclusive on the
parties.
Id. (Emphasis added).
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In John P. Saad & Sons v. Nashville Thermal Transfer
Corp., 642 S.W.2d 151 (Tenn. App. 1982), the Court of Appeals
opined that
[f]acts confessed in pleadings are binding on
the parties and offered evidence of such
facts is properly excluded as irrelevant.
(citation omitted).
Id. at 152. As in the instant case, the John P. Saad & Sons case
involves an answer which admitted that the parties to the
litigation had entered into a contract, a copy of which was
attached to the complaint.
In Irvin v. City of Clarksville, 767 S.W.2d 649 (Tenn.
App. 1988), an owner of property sued the City of Clarksville
seeking damages because of the City’s demolition of a fire-
damaged house in which the plaintiff alleged that he owned an
interest. The trial court found that the plaintiff failed to
prove an ownership interest in the property because he “failed to
introduce a copy of the deed during the presentation of his
evidence.” Id. at 653. The Court of Appeals held that this
finding was in error because the complaint alleged the
plaintiff’s ownership interest and that interest was admitted in
the answer. In so holding, the Court of Appeals said the
following:
In light of the City’s admission, the trial
judge should not have required [the
plaintiff] to prove that he owned an interest
in the property. Admissions in pleadings are
judicial admissions that are conclusive on
the pleader until withdrawn or amended.
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(citation omitted). Thus, when the
allegations in a complaint are admitted in
the answer, the subject matter of the
allegations is removed as an issue, and no
proof is necessary. (citations omitted).
Id.
III.
Analysis
The answers in the instant case admit the execution of
the contract. While the answer of the defendant James C. Wardrep
purports to deny the allegations of paragraph three of the
complaint, his answer actually amounts to a response which is
properly characterized as a “negative pregnant.”3 The response
is actually an affirmation of the contract with allegations of
matters in avoidance. It is clear to us that none of the
defendants deny that the deceased and the plaintiffs executed the
subject contract.
Since the contract exhibited to the complaint was
admitted by the defendants, it was not necessary for the
plaintiffs to formally move the court to admit it into evidence.
It was already before the court by virtue of the admissions in
3
A “negative pregnant” is defined as follows:
In pleading, a negative implying also an affirmative.
Such a form of negative expression as may imply or
carry within it an affirmative. A denial in such form
as to imply or express an admission of the substantial
fact which apparently is controverted; or a denial
which, although in the form of a traverse, really
admits the important facts contained in the
allegations to which it relates.
Black’s Law Dictionary 1032 (6th ed. 1990).
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the answers. John P. Saad & Sons, 642 S.W.2d at 152. We find
that the appellant’s first issue has merit.
The defendants argued at trial that T.C.A. § 66-4-102
bars a suit against them in their representative capacity. The
Chancellor rejected this contention, finding that Brister v.
Brubaker’s Estate, 336 S.W.2d 326 (Tenn. App. 1960) holds to the
contrary. We agree. Brister expressly holds that T.C.A. § 66-4-
102 will not serve to bar a suit against a personal
representative for specific performance of a contract to sell
real property, noting that
. . . if the contract relied on by [the
plaintiff] is otherwise sufficient, it is
binding, as between the parties to same and
their heirs and representatives, without
registration.
336 S.W.2d at 331.
The execution of the subject contract was proven below.
The Chancellor determined that the matters alleged in avoidance
of the contract were not sustained by the proof. While these
latter findings were not raised as issues on this appeal, we find
that the evidence does not preponderate them. We believe it is
appropriate to remand this case to the trial court so it can
fashion by an appropriate order the relief to which the
plaintiffs are entitled under the terms of the contract.
The judgment of the trial court is reversed. This
matter is remanded to the trial court for the entry of an
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appropriate order, consistent with the opinion of this court.
Costs on appeal are assessed to the appellees.
______________________________
Charles D. Susano, Jr., J.
CONCUR:
______________________________
Houston M. Goddard, P.J.
______________________________
William H. Inman, Sr.J.
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