In re Estate of Tandy Nathan Dalton ( 2016 )

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
April 19, 2016 Session
IN RE ESTATE OF TANDY NATHAN DALTON
Appeal from the Chancery Court for Grainger County
No. E-54-09 Telford E. Forgety, Jr., Chancellor
No. E2014-02204-COA-R3-CV-FILED-JULY 8, 2016
In this probate action, the executrix proposed to distribute the decedent’s real and
personal property in a manner that she claimed was in accordance with the decedent’s
Last Will and Testament (“Will”). One beneficiary, one of the decedent’s three adult
children, objected, claiming that the decedent had granted her an option to purchase one
parcel of real property owned by the decedent. The trial court determined that the real
property in question was an asset of the probate estate and that the executrix could
administer it in accordance with the decedent’s Will. The trial court also determined that
a settlement agreement executed by the decedent’s three children precluded the claim of
an option to purchase. The beneficiary appealed. Discerning no reversible error, we
affirm the judgment of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court
Affirmed; Case Remanded
THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which CHARLES D.
SUSANO, JR., J., and J. STEVEN STAFFORD, P.J., W.S., joined.
Gerald L. Gulley, Jr., Knoxville, Tennessee, for the appellant, Linda Gass.
Bruce Hill, Sevierville, Tennessee, for the appellee, Barbara Carmichael, Administrator
of the Estate of Tandy Nathan Dalton.
OPINION
I. Factual and Procedural Background
This appeal presents questions regarding whether the assets of the decedent, Tandy
Nathan Dalton (“Decedent”), were properly distributed following his death on October
12, 2009. At the time of his death, Decedent owned four parcels of real property, one of
which is referred to by the parties as “Buffalo Farm.” Decedent acquired title to Buffalo
Farm from one of his three children, Linda Gass, in 1975. Decedent also possessed
equipment, vehicles, and other personalty at the time of his death. He held funds in
various bank and/or investment accounts as well.
On June 4, 2010, Barbara Carmichael, another of Decedent’s three children and
executrix of his estate, filed a motion in the Chancery Court for Grainger County, Probate
Division (“trial court”), seeking approval of a distribution plan that she claimed was in
conformity with Decedent’s Will. Ms. Carmichael represented that the total value of the
estate was $890,766. She proposed a distribution that would result in each sibling
receiving an equal share of cash and property worth approximately $296,922. Ms.
Carmichael also stated that the proposed distribution was in accordance with a settlement
agreement (“Settlement”) entered into by Decedent’s three children on July 15, 2009.
Ms. Gass responded to Ms. Carmichael’s motion by filing a “Petition to Enforce
Agreement and For Other Relief,” wherein Ms. Gass alleged that she had an option
agreement with Decedent (“Option”) providing that she could repurchase the Buffalo
Farm at any time for the original purchase price of $34,000. Ms. Gass claimed that the
Option originally existed in written form but had been lost. Ms. Gass produced affidavits
of two witnesses, however, who claimed to have knowledge of the Option. One affidavit
was signed by a former neighbor of Decedent, who stated that Decedent discussed the
Option with him on several occasions. The other affidavit was by a friend of Ms. Gass,
who represented that he had seen the Option in written form in 1980 or 1981.
On December 15, 2010, Ms. Carmichael filed a motion for summary judgment and
a statement of undisputed facts, submitted pursuant to Tennessee Rule of Civil Procedure
56.03. In the statement of facts, Ms. Carmichael pointed out Ms. Gass’s admission that
there existed no written document manifesting the Option. Ms. Carmichael also asserted
that Ms. Gass had admittedly never exercised the Option prior to Decedent’s death and
thereafter had never exercised the Option in writing. Ms. Carmichael further stated that
Ms. Gass had not filed a claim against Decedent’s estate and that the Settlement executed
by the siblings did not mention any such Option.
Ms. Carmichael attached to the motion an affidavit of Jerry Dalton, the third
sibling, who stated that Ms. Gass never mentioned the Option to him until following
Decedent’s death and that Decedent also had never mentioned the Option. Mr. Dalton
further stated that prior to Decedent’s death, Decedent conveyed title to Buffalo Farm to
the three siblings as tenants in common. According to Mr. Dalton, the siblings
subsequently entered into the Settlement, which required them to quitclaim their interest
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in Buffalo Farm back to Decedent. The Settlement further provided that all of
Decedent’s assets would be divided equally among the siblings.
Ms. Carmichael also submitted her own affidavit, in which she stated that Ms.
Gass mentioned the Option to Ms. Carmichael in 2008 but never attempted to exercise it.
Ms. Carmichael indicated that she did not believe the Option existed because Decedent’s
Will bequeathed all of his property to the siblings equally. Ms. Carmichael confirmed
that Decedent, prior to his death, conveyed Buffalo Farm to the three siblings as tenants
in common, but Ms. Carmichael maintained that the siblings subsequently conveyed the
property back to Decedent in accordance with the Settlement. Ms. Carmichael stated that
Ms. Gass never mentioned the Option at that time.
Ms. Gass filed a response to the statement of undisputed facts, asserting that a
written document embodying the Option had existed and that she had discussed the
Option with her siblings before their father’s death. Ms. Gass attached her own affidavit,
wherein she stated that her siblings knew of the Option because it had been discussed at a
family meeting in 1997. Ms. Gass further asserted that her brother had seen the written
document containing the Option and that such written document had later disappeared.
The trial court conducted a hearing on March 27, 2011, regarding the motion for
summary judgment. In its subsequent written order, the court noted that it had to
presume that the Option existed for summary judgment purposes even though Ms. Gass
was unable to produce any documentary evidence in support. The court determined that
the Settlement barred Ms. Gass from filing a claim seeking to enforce the Option. The
court cited the relevant language of the Settlement, which clearly provided that the parties
intended a complete resolution of the estate distribution and further provided that they
would not file suit to challenge the Will. As the court noted, the Settlement also stated
that the parties
forever discharge[d] each party to this Agreement . . . of and from all
actions, causes of action, debts, claims, and demands for, upon, or by
reason of any loss, damage, injury, or expense which the First Parties now
have or which may hereafter accrue on account of or in any way growing
out of any and all relationships, contracts, course of dealings, promises, and
expectation, known and unknown, foreseen and unforeseen, and the
consequences thereof resulting or to result from any of the foregoing.
Based upon the language of the Settlement, the trial court granted summary judgment in
favor of Ms. Carmichael as to the Option and dismissed Ms. Gass’s petition seeking to
enforce the Option.
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On April 27, 2012, Ms. Carmichael filed a motion seeking injunctive relief, stating
that she had located a purchaser for the Buffalo Farm but that Ms. Gass refused to
execute documents to effectuate the sale. Ms. Carmichael quoted from a provision in
Decedent’s Will, which directed that the Buffalo Farm be sold and the proceeds divided
equally between the siblings. Ms. Carmichael sought an order from the trial court
compelling Ms. Gass to cooperate with the sale of said real property. Ms. Gass, acting
pro se despite her earlier representation by counsel, filed a letter with the trial court on
October 16, 2012, objecting to the sale of Buffalo Farm. Acknowledging that the court
had granted Ms. Carmichael the authority to sell Buffalo Farm, Ms. Gass asserted that
she was “appealing” that decision.
On October 30, 2012, the trial court entered an order indicating that a hearing was
conducted on October 15, 2012, regarding Ms. Carmichael’s April motion seeking
injunctive relief. The court recited that it had considered the statements of counsel and
Ms. Gass along with the record as a whole. The court noted that Decedent’s Will
directed Ms. Carmichael to sell Buffalo Farm and that Ms. Carmichael had accepted an
offer of purchase. The court found that, pursuant to Tennessee Code Annotated § 31-2-
103, Buffalo Farm was a probate estate asset and Ms. Carmichael was empowered by
Decedent’s Will to sell the property without approval from the other heirs.
Ms. Gass thereafter attempted to appeal the trial court’s interlocutory ruling;
however, this Court dismissed that appeal due to lack of a final judgment. The trial court,
by subsequent order, overruled Ms. Gass’s motion seeking an inventory because
Decedent’s Will waived the filing of an inventory. By that order, the trial court also
denied all other pending motions filed by Ms. Gass without enumerating them.
On March 10, 2014, the trial court entered an order affirming the property
transfers proposed by Ms. Carmichael in the distribution plan. The court also authorized
Ms. Carmichael to execute a personal representative’s deed and any other necessary
documents to effectuate the sale of Buffalo Farm and to distribute the proceeds of such
sale in accordance with Decedent’s Will. In accordance with Tennessee Rule of Civil
Procedure 54.02, the court designated the March 10, 2014 order, as well as its earlier
orders determining Buffalo Farm to be a probate asset and granting partial summary
judgment, as immediately appealable, finding no just reason for delay.
The trial court subsequently set aside the March 10, 2014 order due to lack of
notice to Ms. Gass’s counsel. The court entered an identical order on October 6, 2014.
Ms. Gass timely appealed.
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II. Issues Presented
In her initial and reply briefs, Ms. Gass presented several issues for our review,
many of which were unsupported by legal argument, as further discussed in a subsequent
section of this opinion. Pursuant to the requirements of Tennessee Rule of Appellate
Procedure 27 and Rule 6 of the Rules of the Court of Appeals of Tennessee, we
determine that only the following issues were properly raised by Ms. Gass:
1. Whether the trial court erred by ruling that Buffalo Farm, which was
subject to Ms. Gass’s claimed Option, was part of the probate estate.
2. Whether the trial court lacked authority to order that title to real
property be divested out of certain heirs and vested in others when
such real property was not an asset of the estate.
3. Whether the trial court erred by dismissing Ms. Gass’s requests for an
inventory and accounting of estate assets.
III. Standard of Review
The grant or denial of a motion for summary judgment is a matter of law;
therefore, our standard of review is de novo with no presumption of correctness. See Rye
v. Women’s Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015); Dick
Broad. Co., Inc. of Tenn. v. Oak Ridge FM, Inc., 395 S.W.3d 653, 671 (Tenn. 2013)
(citing Kinsler v. Berkline, LLC, 320 S.W.3d 796, 799 (Tenn. 2010)). As such, this Court
must “make a fresh determination of whether the requirements of Rule 56 of the
Tennessee Rules of Civil Procedure have been satisfied.” Rye, 477 S.W.3d at 250. As
our Supreme Court has explained concerning the requirements for a movant to prevail on
a motion for summary judgment pursuant to Tennessee Rule of Civil Procedure 56:
[W]hen the moving party does not bear the burden of proof at trial, the
moving party 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. We reiterate that a moving party seeking summary
judgment by attacking the nonmoving party’s evidence must do more than
make a conclusory assertion that summary judgment is appropriate on this
basis. Rather, Tennessee Rule 56.03 requires the moving party to support
its motion with “a separate concise statement of material facts as to which
the moving party contends there is no genuine issue for trial.” Tenn. R.
5
Civ. P. 56.03. “Each fact is to be set forth in a separate, numbered
paragraph and supported by a specific citation to the record.” Id. When
such a motion is made, any party opposing summary judgment must file a
response to each fact set forth by the movant in the manner provided in
Tennessee Rule 56.03. “[W]hen a motion for summary judgment is made
[and] . . . supported as provided in [Tennessee Rule 56],” to survive
summary judgment, the nonmoving party “may not rest upon the mere
allegations or denials of [its] pleading,” but must respond, and by affidavits
or one of the other means provided in Tennessee Rule 56, “set forth specific
facts” at the summary judgment stage “showing that there is a genuine issue
for trial.” Tenn. R. Civ. P. 56.06. The nonmoving party “must do more
than simply show that there is some metaphysical doubt as to the material
facts.” Matsushita Elec. Indus. Co., 475 U.S. [574,] 586, 106 S. Ct. 1348
[1986]. The nonmoving party must demonstrate the existence of specific
facts in the record which could lead a rational trier of fact to find in favor of
the nonmoving party. If a summary judgment motion is filed before
adequate time for discovery has been provided, the nonmoving party may
seek a continuance to engage in additional discovery as provided in
Tennessee Rule 56.07. However, after adequate time for discovery has
been provided, summary judgment should be granted if the nonmoving
party’s evidence at the summary judgment stage is insufficient to establish
the existence of a genuine issue of material fact for trial. Tenn. R. Civ. P.
56.04, 56.06. The focus is on the evidence the nonmoving party comes
forward with at the summary judgment stage, not on hypothetical evidence
that theoretically could be adduced, despite the passage of discovery
deadlines, at a future trial.
Rye, 477 S.W.3d at 264-65 (emphasis in original). Pursuant to Tennessee Rule of Civil
Procedure 56.04, the trial court must “state the legal grounds upon which the court denies
or grants the motion” for summary judgment, and our Supreme Court has instructed that
the trial court must state these grounds “before it invites or requests the prevailing party
to draft a proposed order.” See Smith v. UHS of Lakeside, Inc., 439 S.W.3d 303, 316
(Tenn. 2014).
Additionally, as this Court has explained with regard to self-represented litigants:
Parties who decide to represent themselves are entitled to fair and
equal treatment by the courts. The courts should take into account that
many pro se litigants have no legal training and little familiarity with the
judicial system. However, the courts must also be mindful of the boundary
between fairness to a pro se litigant and unfairness to the pro se litigant’s
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adversary. Thus, the courts must not excuse pro se litigants from
complying with the same substantive and procedural rules that represented
parties are expected to observe.
The courts give pro se litigants who are untrained in the law a certain
amount of leeway in drafting their pleadings and briefs. Accordingly, we
measure the papers prepared by pro se litigants using standards that are less
stringent than those applied to papers prepared by lawyers.
Pro se litigants should not be permitted to shift the burden of the
litigation to the courts or to their adversaries. They are, however, entitled
to at least the same liberality of construction of their pleadings that Tenn.
R. Civ. P. 7, 8.05, and 8.06 provide to other litigants. Even though the
courts cannot create claims or defenses for pro se litigants where none exist,
they should give effect to the substance, rather than the form or
terminology, of a pro se litigant’s papers.
Young v. Barrow, 130 S.W.3d 59, 62-63 (Tenn. Ct. App. 2003) (internal citations
omitted).
IV. Deficiencies in Appellant’s Brief
Ms. Gass filed an initial brief in this matter that contained sixty-five pages of facts
and only six pages of legal argument, despite the fact that nine issues were listed for
review. With regard to the requirements for an appellant’s brief, Tennessee Rule of
Appellate Procedure 27 provides in pertinent part:
(a) Brief of the Appellant. The brief of the appellant shall contain under
appropriate headings and in the order here indicated:
***
(6) A statement of facts, setting forth the facts relevant to the issues
presented for review with appropriate references to the record;
(7) An argument, which may be preceded by a summary of argument,
setting forth:
(A) the contentions of the appellant with respect to the issues
presented, and the reasons therefor, including the reasons why
the contentions require appellate relief, with citations to the
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authorities and appropriate references to the record (which
may be quoted verbatim) relied on; and
(B) for each issue, a concise statement of the applicable
standard of review (which may appear in the discussion of the
issue or under a separate heading placed before the discussion
of the issues) . . . .
(Emphasis added.)
Similarly, Rule 6 of the Rules of the Court of Appeals of Tennessee provides in pertinent
part:
(a) Written argument in regard to each issue on appeal shall contain:
(1) A statement by the appellant of the alleged erroneous action of the trial
court which raises the issue and a statement by the appellee of any action of
the trial court which is relied upon to correct the alleged error, with citation
to the record where the erroneous or corrective action is recorded.
(2) A statement showing how such alleged error was seasonably called to
the attention of the trial judge with citation to that part of the record where
appellant’s challenge of the alleged error is recorded.
(3) A statement reciting wherein appellant was prejudiced by such alleged
error, with citations to the record showing where the resultant prejudice is
recorded.
(4) A statement of each determinative fact relied upon with citation to the
record where evidence of each such fact may be found.
(b) No complaint of or reliance upon action by the trial court will be
considered on appeal unless the argument contains a specific reference to
the page or pages of the record where such action is recorded. No assertion
of fact will be considered on appeal unless the argument contains a
reference to the page or pages of the record where evidence of such fact is
recorded.
Ms. Gass’s initial brief contained numerous deficiencies with regard to the above-
listed requirements. The sixty-five-page statement of facts contained in her brief
contained very few references to the record. See Tenn. R. App. P. 27. The argument
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section contains only six total pages, also exhibiting few record citations and even fewer
citations to authority. Id.; see also Tenn. Ct. App. R. 6. With regard to several of the
issues raised in her initial brief, Ms. Gass failed to demonstrate that the errors alleged
were ever brought to the attention of the trial court. See Tenn. Ct. App. R. 6. In addition,
with regard to several of the issues raised, Ms. Gass did not provide any documentation
in the appellate record to support her contentions. Id. As this Court has previously
explained with regard to deficiencies in an appellate brief:
Our Courts have “routinely held that the failure to make appropriate
references to the record and to cite relevant authority in the argument
section of the brief as described by Rule 27(a)(7) constitutes a waiver of the
issue[s] [raised].” Bean v. Bean, 40 S.W.3d 52, 55 (Tenn. Ct. App. 2000).
In Bean, we went on to hold that “an issue is waived where it is simply
raised without any argument regarding its merits.” Id. at 56; see also
Newcomb v. Kohler Co., 222 S.W.3d 368, 401 (Tenn. Ct. App. 2006)
(holding that the failure of a party to cite to any authority or to construct an
argument regarding his or her position on appeal constitutes waiver of that
issue). As we stated in Newcomb, a “skeletal argument that is really
nothing more than an assertion will not properly preserve a claim.”
Newcomb, 222 S.W.3d at 400. It is not the function of this Court to verify
unsupported allegations in a party’s brief or to research and construct the
party’s argument. Bean, 40 S.W.3d at 56.
Despite the fact that [the appellant’s] brief is woefully inadequate,
there are times when this Court, in the discretion afforded it under Tenn. R.
App. P. 2, may waive the briefing requirements to adjudicate the issues on
their merits. This is especially true in cases involving domestic relations
where the interests of children are involved. However, in order for this
Court to properly review the trial court’s actions, the record must be in a
proper posture to provide us a meaningful review. This Court’s review is
limited to the appellate record and it is incumbent upon the appellant to
provide a record that is adequate. Jennings v. Sewell-Allen Piggly Wiggly,
173 S.W.3d 710 (Tenn. 2005).
Chiozza v. Chiozza, 315 S.W.3d 482, 489 (Tenn. Ct. App. 2009).
In the case at bar, some of the issues raised by Ms. Gass address the validity of
Decedent’s Will and whether the testator’s intent was followed. We note that Decedent’s
Will does not appear in the record, nor does any documentation demonstrating that these
issues were raised at the trial court level. As such, we deem these issues waived. See
Chiozza, 315 S.W.3d at 489; see also Simpson v. Frontier Cmty. Credit Union, 810
9
S.W.2d 147, 153 (Tenn. 1991). Similarly, issues raised regarding “shared water at the
homeplace” and promissory notes owed to Decedent by Ms. Gass’s siblings were never
ruled upon by the trial court. As such, this Court has no authority to address such issues
on appeal. See Dorrier v. Dark, 537 S.W.2d 888, 890 (Tenn. 1976) (“This is a court of
appeals and errors, and we are limited in authority to the adjudication of issues that are
presented and decided in the trial courts . . . .”). Accordingly, we will address only those
issues that are properly before this Court.
V. Buffalo Farm
Ms. Gass contends that the Settlement is not dispositive of her claim regarding
Buffalo Farm because Buffalo Farm was not an asset of the probate estate. The
Settlement provides in pertinent part:
WHEREAS, the parties to this agreement, Jerry Dalton, Linda
Dalton Gass and Barbara Carmichael, wish to resolve all issues and matters
related to the pending conservatorship litigation in Grainger County,
Tennessee, regarding their father Tandy Dalton; issues and matters relating
to the legality and propriety of certain real estate transfers made shortly
before competing petitions for conservatorship were filed, and issues and
matters regarding the treatment of their father’s estate and their relative
interests therein;
WHEREAS, the parties recognize that there is a great uncertainty to
matters pending in litigation, and all parties believe and agree that they are
receiving fair and valuable consideration by entering into this agreement,
WHEREAS, the parties wish to give full effect and honor to their
father’s wishes that his children receive equal distributions of his estate
upon his passing,
WHEREAS, the parties agree as follows:
***
8. Jerry Dalton, Linda Dalton Gass, and Barbara Carmichael agree to
execute any and all documents necessary to set aside the December 30,
2008 deed between their father, Tandy Dalton, whereby each party
received a portion of the real property known as the “Buffalo Farm”
property.
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***
11. It is the intention of the parties that the aforementioned real properties
are to remain in the estate of Tandy Dalton to be used for his care.
***
17. The remaining assets of the Tandy Dalton estate shall be equally
divided among the parties, per stirpes.
18. The parties agree that they will not file any action individually or
through agents, successors or assigns, to challenge the last will and
testament of Tandy Dalton in existence at the time of the signing of
this agreement, but rather they will abide by the terms of this
agreement to resolve claims related to the distribution of his estate.
19. The Parties . . . hereby release and forever discharge each party to this
Agreement . . . of and from all actions, causes of action, debts, claims,
and demands for, upon, or by reason of any loss, damage, injury, or
expense which the First Parties now have or which may hereafter
accrue on account of or in any way growing out of any and all
relationships, contracts, course of dealings, promises, and expectation,
known and unknown, foreseen and unforeseen, and the consequences
thereof resulting or to result from any of the foregoing.
Ms. Gass contends that the trial court erred by granting partial summary judgment
in favor of Ms. Carmichael regarding the Option. According to Ms. Gass, she
demonstrated the existence of a genuine issue of material fact that should preclude
summary judgment by proving the parameters and terms of the Option. Ms. Gass further
argues that Buffalo Farm, as subject to the Option, is not a part of Decedent’s estate and
therefore not controlled by the Settlement. Ms. Gass cites no authority for this
proposition.
Assuming that the Option existed as Ms. Gass claims, as we must for the purposes
of summary judgment, the subject property would still be an asset of Decedent’s estate to
be administered according to his Will. See, e.g., Lynch v. Burger, 168 S.W.2d 487, 488
(Tenn. Ct. App. 1942). Tennessee Code Annotated § 31-2-103 (2015) controls the
vesting of real property following a death, providing in pertinent part:
The real property of an intestate decedent shall vest immediately upon
death of the decedent in the heirs as provided in § 31-2-104. The real
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property of a testate decedent vests immediately upon death in the
beneficiaries named in the will, unless the will contains a specific provision
directing the real property to be administered as part of the estate subject to
the control of the personal representative.
In the case at bar, the record reflects a finding by the trial court that Decedent’s Will
designated Buffalo Farm as an asset to be sold by the executrix with the proceeds to be
divided equally among the siblings. This Court has no basis upon which to review that
determination because a copy of the Will does not appear in the record. See Word v.
Word, 937 S.W.2d 931, 933 (Tenn. Ct. App. 1996) (“A party raising issues on appeal is
responsible for furnishing the appellate court with a record that will enable that court to
reach the issues raised.”). Because Buffalo Farm was owned by Decedent at the time of
his death and inasmuch as the trial court found that Decedent’s Will directed Ms.
Carmichael to administer Buffalo Farm as part of the estate, the trial court properly
determined it to be an asset of Decedent’s estate even if a valid option to purchase
existed. See Lynch, 168 S.W.3d at 488. As such, pursuant to the express language of the
Settlement, Buffalo Farm would be an “asset[] of the Tandy Dalton estate [to] be equally
divided among the parties, per stirpes.”
To the extent that Ms. Gass is arguing that she had some greater interest in the
subject property than her siblings by reason of the unexercised Option, we disagree. See
Sager v. Rogers, No. C.A. 115, 1987 WL 6718 at *2 (Tenn. Ct. App. Feb. 20, 1987)
(“[A]n option creates no interest in land, legal or equitable, until exercised.”); but cf.
Town of Dandridge v. Patterson, 827 S.W.2d 797, 800 (Tenn. Ct. App. 1991) (“Although
an option to purchase might not create a present interest in land . . . it is such an interest
or right which would preclude [a governmental entity] from proceeding with its
condemnation suit.”).
We further note that Ms. Gass describes the Option as allowing her to repurchase
Buffalo Farm from her parents at any time for the original purchase price of $34,000. As
this Court has previously elucidated with regard to options, however:
An option is an offer to sell, irrevocable for a specified period. It
confers on the optionee the right to purchase within the stipulated time
subject to the terms of the option.
An option cannot be enforced as a contract until exercised by
acceptance. The acceptance must be unqualified, absolute, unconditional,
unequivocal, unambiguous, positive, without reservation, and according to
the terms of the option. An acceptance of an option must be such a
compliance with the conditions as to bind both parties, and if it fails to do
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so it binds neither.
Pinney v. Tarpley, 686 S.W.2d 574, 580 (Tenn. Ct. App. 1984) (internal citations
omitted). In the instant action, according to Ms. Gass’s claims, the Option contained no
time frame within which it had to be exercised. Although there exists some persuasive
authority for implying a reasonable time for the duration of such an option, see Mohr
Park Manor, Inc. v. Mohr, 424 P.2d 101, 106 (Nev. 1967), the Option herein, which was
allegedly granted in 1975, was not accepted by Ms. Gass before Decedent’s death, a time
period spanning over thirty years.
As previously explained, the Settlement also reflects that the siblings agreed not to
file any action challenging the terms of Decedent’s Will. Rather, the siblings agreed to
abide by the terms of the Settlement to resolve claims regarding the distribution of
Decedent’s estate. The Settlement further provides that it was the intention of Decedent
“that his children receive equal distributions of his estate upon his passing.” Moreover,
Buffalo Farm was expressly mentioned as one such asset in the Settlement. Ms. Gass
executed the Settlement and evinced her agreement to it without mentioning or
attempting to exercise the Option at that time. Had Ms. Gass intended to exercise or
enforce the Option, she should have preserved her right to do so in the Settlement, which
expressly provides that the siblings’ intent in executing it was to “resolve all . . . issues
and matters regarding the treatment of their father’s estate and their relative interests
therein.” We therefore conclude that the trial court properly determined that Ms. Gass’s
claim regarding Buffalo Farm was precluded by her execution of the Settlement and that
Buffalo Farm was an asset of Decedent’s estate.
VI. Other Real Property
Ms. Gass contends that the trial court was without authority to enter the October 6,
2014 order purporting to vest title to the real properties that belonged to Decedent at the
time of his death in certain heirs. Ms. Gass posits that “real property vest[s] immediately
in the devisees named in the will unless it specifically directs that the property be part of
the estate under control of the executor.” Therefore, according to Ms. Gass, the real
properties owned by Decedent at his death vested immediately in the three siblings as
tenants in common and were not assets of the probate estate subject to distribution. We
disagree.
As noted by the trial court, Tennessee Code Annotated § 31-2-103 controls the
vesting of real property following the death of a testator, providing that “real property of
a testate decedent vests immediately upon death in the beneficiaries named in the will,
unless the will contains a specific provision directing the real property to be administered
as part of the estate subject to the control of the personal representative” (emphasis
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added). Pursuant to the express language of this statutory provision, the Decedent’s real
property would not immediately vest in the beneficiaries named in the Will if that
testamentary instrument directed that the real property would be administered as part of
the estate, subject to the control of the personal representative. We emphasize that a copy
of the Will does not appear in this record.
In its October 6, 2014 final order, however, the trial court noted that certain
transfers of property were made by Ms. Carmichael in the distribution of Decedent’s
estate, pursuant to the Executrix’s deeds. These conveyances were then ratified by the
court in that order, with the court expressly noting that “[t]he conveyances by the
Executrix described in paragraph 20 above are consistent with and accomplish the terms
of the Last Will and Testament of Tandy Dalton . . . .” Because the record does not
contain a copy of the Will, this Court cannot review the trial court’s determination in this
regard. See Word, 937 S.W.2d at 933 (“A party raising issues on appeal is responsible
for furnishing the appellate court with a record that will enable that court to reach the
issues raised.”). We therefore conclude that this issue has been waived.
VII. Inventory and Accountings
Finally, Ms. Gass argues that the trial court erred by entering an order on April 25,
2013, refusing her request for an inventory of the property in Decedent’s estate and by
refusing her repeated requests for an accounting. We note, however, that the October 6,
2014 order of the trial court, from which Ms. Gass has appealed, expressly states that the
only orders designated as final pursuant to Tennessee Rule of Civil Procedure 54.02 are
the October 6, 2014 order; the October 11, 2014 order granting partial summary
judgment; and the October 30, 2012 order designating Buffalo Farm as a probate estate
asset. None of these orders contains any ruling addressing Ms. Gass’s requests for an
inventory or accountings. As such, this Court lacks subject matter jurisdiction to address
those issues due to the lack of a final order of adjudication. See Tenn. R. App. P. 3;
Davis v. Davis, 224 S.W.3d 165, 166 (Tenn. Ct. App. 2006).
VIII. Conclusion
For the foregoing reasons, we affirm the trial court’s judgment in all respects.
Costs on appeal are assessed to the appellant, Linda Gass. This case is remanded to the
trial court for further proceedings consistent with this opinion.
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THOMAS R. FRIERSON, II, JUDGE
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