The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
August 17, 2011 Session
IN RE: ESTATE OF INA RUTH BROWN
Appeal from the Chancery Court for Knox County, Probate Division
No. 61159-3 Michael W. Moyers, Chancellor
No. E2011-00179-COA-R3-CV-FILED-OCTOBER 4, 2011
This appeal arises from a dispute concerning a contract to execute mutual wills. Ina Ruth
Brown (“Mrs. Brown”), and her husband, Roy Brown, Jr. (“Mr. Brown”), executed mutual
wills as agreed by contract. After Mr. Brown’s death, Mrs. Brown executed a new will. Mrs.
Brown died. Rockford Evan Estes (“Defendant”), Mrs. Brown’s son, submitted the new will
for probate. Mr. Brown’s adult children, Roy E. Brown, III, Joan Brown Moyers, and Donna
Brown Ellis (“the Plaintiffs”) filed this will contest suit in the Chancery Court for Knox
County, Probate Division (“the Trial Court”), contesting the new will on the basis that,
among other things, the mutual wills between Mr. Brown and Mrs. Brown were irrevocable.
Both the Plaintiffs and Defendant filed a Motion for Summary Judgment. The Trial Court
denied Defendant’s motion, granted the Plaintiffs’ motion for summary judgment, and voided
the new will created by Mrs. Brown. Defendant appeals. We hold that the Trial Court did
not err in denying Defendant’s motion for summary judgment because the Trial Court did
have subject matter jurisdiction to hear this will contest based on this breach of contract
claim. We further find that the Trial Court did not err in granting the Plaintiffs’ motion for
summary judgment after also finding that the June 13, 2002 contract to execute mutual wills
was supported by adequate consideration. 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
D. M ICHAEL S WINEY, J., delivered the opinion of the Court, in which C HARLES D . S USANO,
J R., and J OHN W. M CC LARTY, J.J., joined.
Mark E. Brown and Maurice W. Gerard, Knoxville, Tennessee, for the appellant, Rockford
Evan Estes.
William L. Waters, Knoxville, Tennessee, for the appellees, Roy E. Brown, III, Joan Brown
Moyers, and Donna Brown Ellis.
OPINION
Background
In October 1999, Mrs. Brown and her husband, Mr. Brown, entered into a
contract to execute wills.1 According to Mr. Brown’s will, in part, Mrs. Brown was to
receive a life estate in residential property at Browns Gap Road and an adjoining one-fourth
acre lot. At her death, the property would pass per stirpes to the Plaintiffs. Pursuant to Mrs.
Brown’s will, in part, Mr. Brown was to receive a life estate in property at Irolla Road that
would pass to Mrs. Brown’s sons upon Mr. Brown’s death. In May 2002, Mrs. Brown and
Mr. Brown transferred the Browns Gap Road property by warranty deed to Mr. Brown’s son,
Roy Brown, III, and his wife, Teresa Gail Brown. The deed for this transfer was recorded
in June 2002.
On June 13, 2002, Mrs. Brown and Mr. Brown signed a contract to execute
mutual wills. The parties agreed that their respective wills could not be changed without the
consent of the other, and the contract further stated, in part:
3. Each party agrees that in the event of the death of one of them,
the surviving party shall have no right to change his or her Will dated the 13
day of June, 2002, nor shall the surviving party have the right to dispose of any
property, real or personal, except as permitted under the terms of the other’s
Will dated 13 June, 2002, a copy of which is attached hereto.
Mrs. Brown’s will included the following provision:
My real estate is to be retained for the use of my husband Roy E.
Brown, Jr. for the duration of his lifetime. At his death all property is to be
given per stirpes in equal shares to Roy E. Brown, III, Joan Brown Moyers,
Donna Brown Ellis, and my son Rockford Evan Estes.
Mr. Brown’s will contained a similar reciprocal provision. Mr. Brown died shortly after the
signing of the June 13, 2002 contract to execute wills.
On June 28, 2002, Mrs. Brown executed a new will, revoking previous wills.
The June 28, 2002 will left, per stirpes, all of Mrs. Brown’s tangible personal property not
held solely for investment purposes and residuary estate not effectively disposed of elsewhere
1
In Mr. Brown’s Last Will and Testament, the date under Mr. Brown’s signature reads “10-27-97”
but the date elsewhere in the documents is given as October 27, 1999.
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in the will to her son, Defendant. Mrs. Brown died in February 2003. In March 2003,
Defendant filed his Petition for Probate of Will and Granting of Letter Testamentary in the
Trial Court. The June 28, 2002 will subsequently was admitted to probate.
In February 2004, the Plaintiffs filed their Complaint to Contest Will and
Complaint for Declaratory Judgment. The Plaintiffs argued, among other things, that the
June 13, 2002 contract to execute wills precluded the June 28, 2002 will and that Mrs. Brown
was unduly influenced by Defendant. In August 2006, Defendant filed a motion for
summary judgment. Defendant argued that the Trial Court lacked subject matter jurisdiction
to hear a will contest based on this contractual dispute. Defendant further argued that the
Plaintiffs had failed to carry their burden of proof as to claims of undue influence. The Trial
Court denied Defendant’s motion for summary judgment with respect to his argument that
the Trial Court lacked subject matter jurisdiction but granted Defendant’s motion for
summary judgment with respect to the Plaintiffs’ claim of undue influence.
In May 2010, the Plaintiffs filed a motion for summary judgment. The
Plaintiffs, in their accompanying memorandum of law, requested that the Trial Court void
Mrs. Brown’s June 28, 2002 will. In June 2010, Defendant filed another motion for
summary judgment. In his memorandum of law, Defendant argued primarily that the June
13, 2002 will contract was not supported by valid consideration. Defendant characterized
the June 13, 2002 will as Mrs. Brown “giving three-fourths (3/4) of her commercial property
to Roy Brown’s children in consideration of having no place to live after Roy, Jr.’s death and
for her son [Defendant] to have an interest in real property that Roy Brown, Jr. did not own.”
A hearing on these cross-motions for summary judgment was held in September, 2010.
In January 2011, the Trial Court entered an order denying Defendant’s motion
for summary judgment and granting the Plaintiffs’ motion for summary judgment. The Trial
Court found that the June 13, 2002 contract to execute wills was supported by adequate
consideration and declared the June 28, 2002 will of Mrs. Brown null and void. Defendant
appeals. We affirm the judgment of the Trial Court.
Discussion
Though not stated exactly as such, Defendant raises two issues on appeal: 1)
whether the Trial Court erred in denying Defendant’s motion for summary judgment and
holding instead that the Trial Court had subject matter jurisdiction to hear this will contest
based on a breach of contract claim; and 2) whether the Trial Court erred in denying
Defendant’s motion for summary judgment after finding that the June 13, 2002 contract to
execute mutual wills was supported by adequate consideration.
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As this appeal stems from a summary judgment disposition, we will apply the
standard of review for summary judgment cases.2 Our Supreme Court reiterated the standard
of review in summary judgment cases as follows:
The scope of review of a grant of summary judgment is well
established. Because our inquiry involves a question of law, no presumption
of correctness attaches to the judgment, and our task is to review the record to
determine whether the requirements of Rule 56 of the Tennessee Rules of Civil
Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.
1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).
A summary judgment may be granted only when there is no genuine
issue of material fact and the moving party is entitled to judgment as a matter
of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.
1993). The party seeking the summary judgment has the ultimate burden of
persuasion “that there are no disputed, material facts creating a genuine issue
for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.
If that motion is properly supported, the burden to establish a genuine issue of
material fact shifts to the non-moving party. In order to shift the burden, the
movant must either affirmatively negate an essential element of the
nonmovant’s claim or demonstrate that the nonmoving party cannot establish
an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,
270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are not sufficient
to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also
Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not
apply the federal standard for summary judgment. The standard established
in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),
sets out, in the words of one authority, “a reasonable, predictable summary
judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd
v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.
175, 220 (2001).
Courts must view the evidence and all reasonable inferences therefrom
in the light most favorable to the non-moving party. Robinson v. Omer, 952
S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate
only when the facts and the reasonable inferences from those facts would
permit a reasonable person to reach only one conclusion. Staples v. CBL &
Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this
2
The parties disputed certain non-material facts.
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Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.
Recently, this Court confirmed these principles in Hannan.
Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).
We first address whether the Trial Court erred in denying Defendant’s motion
for summary judgment after instead holding that the Trial Court did have subject matter
jurisdiction to hear this will contest based on this alleged breach of contract to execute
mutual wills. We have previously discussed subject matter jurisdiction and its significance:
A court must have jurisdiction over the subject matter of the proceeding
as well as over the parties. State ex rel. Whitehead v. Thompson, No.
01A01-9511-CH-00538, 1997 WL 749465 at *2 (Tenn. Ct. App. Dec. 5,
1997). The question of subject matter jurisdiction relates to a court's power to
adjudicate a particular type of controversy. Toms v. Toms, 98 S.W.3d 140, 143
(Tenn. 2003); Northland Ins. Co. v. State, 33 S.W.3d 727, 729 (Tenn. 2000).
Subject matter jurisdiction “relates to the nature of the cause of action and the
relief sought” and “is generally defined by the constitution or statute and
conferred by the authority that organizes the courts.” Meighan v. U.S. Sprint
Communications Co., 924 S.W.2d 632, 639 (Tenn. 1996); Kane v. Kane, 547
S.W.2d 559, 560 (Tenn. 1977). The parties cannot confer subject matter
jurisdiction on a court by either appearance, plea, consent, silence, or waiver.
Dishmon v. Shelby State Cmty. Coll., 15 S.W.3d 477, 480 (Tenn. Ct. App.
1999). A court cannot enter a valid, enforceable order without subject matter
jurisdiction. Brown v. Brown, 198 Tenn. 600, 610, 281 S.W.2d 492, 497
(1955); SunTrust Bank v. Johnson, 46 S.W.3d 216, 221 (Tenn. Ct. App. 2000).
Accordingly, when subject matter jurisdiction is questioned the court must first
determine the nature of the case and then ascertain whether the Tennessee
Constitution, the General Assembly, or the common law have conferred on it
the power to adjudicate its cases. Staats v. McKinnon, 206 S.W.3d 541 at 542
(Tenn. Ct. App. 2006). Subject matter jurisdiction may be raised at any time
by the parties or by the appellate court sua sponte on appeal. County of Shelby
v. City of Memphis, 211 Tenn. 410, 365 S.W.2d 291 (Tenn. 1963).
Graham v. Graham, No. E2008-00180-COA-R3-CV, 2009 WL 167071, at *6 (Tenn. Ct.
App. January 26, 2009), no appl. perm. appeal filed.
The briefs of both parties discuss Rogers v. Russell, 733 S.W.2d 79 (Tenn. Ct.
App. 1986), a case dealing with the alleged irrevocability of a prior joint will and the proper
procedure for challenging a subsequent will. We stated, in part:
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In accordance with the majority rule, a revoked will, even if it is a joint will,
should be denied probate even though its revocation was a breach of contract,
and the substituted will should be admitted to probate if it is otherwise proper.
Then the persons claiming that the decedent's execution of a subsequent will
breached a contract may seek relief by filing a claim against the decedent's
estate.
Rogers, 733 S.W.2d at 85 (footnote omitted).
Our Supreme Court addressed circumstances similar to those of the instant
appeal in the case of Junot v. Estate of Gilliam, 759 S.W.2d 654 (Tenn. 1988), an Opinion
that discuses Rogers. The parties here sharply dispute the effect of Junot. Our Supreme
Court, in holding that an action to void a will based on the alleged irrevocability of a prior
will could proceed as a will contest, stated:
It is clear that under the provisions of T.C.A., § 16–10–111, the law
court had jurisdiction to entertain any suit of an equitable nature and power to
decide it upon principles of equity in the absence of an objection to the
exercise of such jurisdiction. No such objection was made. On the contrary
the parties expressly consented. We find without merit the contention of
appellants that the case should have been transferred to the chancery court.
The case relied upon by appellants, Rogers v. Russell, 733 S.W.2d 79
(Tenn. App. 1986) supports their position here except in counties having
separate probate and chancery courts. In that case the Court of Appeals held
that in actions of this nature proper procedure would be to seek relief by filing
a claim against the decedent's estate in the probate court. See 733 S.W.2d at
85. Further, in that case, specific objection had been made by the proponents
of the subsequent will to the jurisdiction of the circuit court to try the alleged
breach of contract claim. There had been no consent to trial in the circuit court
as in the present case.
It appears from an examination of the cases on this subject that various
procedures have been followed in actions such as this. In one of the leading
cases relied upon by appellants, Harris v. Morgan, 157 Tenn. 140, 7 S.W.2d
53 (1928) suit was brought in chancery court for specific performance of a
contract not to revoke a will and for the purpose of imposing a trust upon
specific real estate. The Supreme Court held that such an action would lie,
reversing a decision of the chancellor who had sustained a demurrer on the
issue of the statute of frauds.
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In another case, Petty v. Estate of Nichols, 569 S.W.2d 840 (Tenn. App.
1977) the matter proceeded by a will contest and jury trial in circuit court.
As pointed out by the Court of Appeals in the Rogers case, supra, suits
such as this are not strictly will contests, because any will is revocable. They
are predicated upon a claim of prior contract between the testator and another.
It is the contract which is sought to be enforced and which is alleged to be
irrevocable, not the subsequent will itself. This distinction was recognized by
this Court in the case of Church of Christ Home for Aged, Inc. v. Nashville
Trust Co., 184 Tenn. 629, 637, 202 S.W.2d 178, 181 (1947). That action had
been instituted as a suit for specific performance in chancery court. In its
opinion, this Court called “highly technical” the distinction between a suit on
an alleged contract and a claim that a prior will was irrevocable.
We are in agreement with the Court of Appeals in the Rogers case, 733
S.W.2d at 85, that actions such as this could be prosecuted by a claim against
an estate in probate court. In the present case, however, the appellants alleged
that the probate of Mrs. Gilliam's second will was void and that instead her
prior will executed in 1974 should be probated and established. At least in
form, a will contest was presented. This is the reason the probate judge
certified the matter to the law court. In the law court, no objection was made
to equitable jurisdiction being exercised, including the imposition of a
constructive trust if deemed appropriate. Under the circumstances, we find
without merit the jurisdictional issue sought to be raised by appellants.
Junot, 759 S.W.2d at 655-56.
We do not interpret Junot to mean that a party challenging a will on the basis
that a prior contractual obligation precludes that will must do so by filing a claim against the
estate. While one may file a claim against the estate in such a scenario, Junot shows that is
only one option with a will contest being another permitted option. The Supreme Court in
Junot allowed that case to proceed as a will contest instead of requiring it to be filed as a
claim against the estate. Junot, 759 S.W.2d at 656. In doing so, the Supreme Court must
have determined that the trial court had jurisdiction to hear that will contest as the trial
court’s order would have been an invalid and unenforceable order if the trial court did not
have jurisdiction. The Supreme Court in Junot went on to find that the evidence was
insufficient to prove a contract to make irrevocable wills in that case. Id. at 657-58.
We find no prohibition against parties proceeding, as did the Plaintiffs in this
case, through a will contest. Defendant vigorously argues that his objection early in this case
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to the Trial Court’s subject matter jurisdiction is an important and distinguishing point from
Junot. We respectfully disagree. In Junot, one issue was whether or not the law court had
jurisdiction to hear that suit as equitable relief was requested. Junot, 759 S.W.2d at 655. The
Supreme Court held that as there was no objection to the exercise of such jurisdiction, the
law court had subject matter jurisdiction. Id. at 656. That particular jurisdictional question
concerning equitable relief being requested is not relevant here. What is relevant here is that
our Supreme Court in Junot allowed that dispute concerning a contract not to revoke a will
to proceed as a will contest and not as a claim against the estate. Just as in Junot, the Trial
Court either had subject matter jurisdiction to try this will contest or it did not. We hold that
the Trial Court did, as in Junot, have subject matter jurisdiction to hear this will contest.
We acknowledge a relatively recent Opinion of ours that may be somewhat at
odds with our analysis herein. We addressed another action concerning an alleged prior,
irrevocable will in In re Estate of Allen Dee Cook, No. E2004-00293-COA-R3-CV, 2004 WL
3021131 (Tenn. Ct. App. Dec. 30, 2004), no appl. perm. appeal filed.3 We stated, in relevant
part:
The first issue raised by the plaintiffs concerns the trial court's reliance
on our decision in Rogers v. Russell, 733 S.W.2d 79 (Tenn. Ct. App. 1986).
The trial court relied on that case to support its holding that the plaintiffs failed
to properly bring a claim against the estate seeking to enforce the contract not
to revoke the 1992 joint will. In Rogers, this court addressed the manner by
which one may assert an allegation that a will executed prior to the one
admitted to probate was irrevocable. Id. at 83. We held that a will contest
case is not the proper proceeding within which to assert the irrevocability of
a prior will. Id. In so holding, we noted the “difference between the
testamentary and contractual aspects of a joint will.” Id. We further held that
a party seeking to raise the contract issue must proceed by filing a claim
against the decedent's estate, averring that the decedent breached a contract by
executing a subsequent will. Id. at 85.
The plaintiffs seem to argue that Rogers provides for two different
“vehicles” for pursuing a complaint for breach of contract not to revoke a joint
will. In support of this proposition, the plaintiffs cite language from Rogers,
which language comes from a treatise:
Frequently joint or mutual wills are made in pursuance of an
agreement or compact not to revoke them. Here it is important
3
No party to this appeal cited this case.
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to distinguish between the concept of wills and that of contracts.
Our law has no separate concept of “will made in pursuance of
contract;” we must treat the will part as a will and the contract
part as a contract.
Viewed in the aspect of a will, such instruments do not differ
from other wills. In order to be effective, they must be admitted
to probate and they are revocable although there has been an
agreement not to revoke. The matter of the contractual aspect
does not properly arise upon probate, but only when the
agreement is sought to be established as a claim against the
estate, or in a proceeding against the successors of the decedent.
Id. at 84 (quoting T. Atkinson, Handbook on the Law of Wills § 49, at 224 (2d
ed.1953)) (emphasis added). By relying upon the above-cited language,
particularly the clause providing that a claim to enforce a contract may be
“established as a claim against the estate, or in a proceeding against the
successors of the decedent,” id. (emphasis added), it appears that the plaintiffs
understand Rogers to stand for the proposition that such a claim can be made
by filing a separate lawsuit against the personal representatives of the deceased
rather than by filing a claim in probate against the estate.
Rogers does seem to suggest some type of alternative way to pursue the
subject claim. Yet, even assuming this is true, we are dealing in the instant
case with a claim that was filed in probate court, and there is certainly nothing
in Rogers to suggest that a claimant can pursue different remedies for the same
cause of action in different forums at the same time. The plaintiffs pursued
their claim to enforce the contract not to revoke the 1992 will in probate court,
and, under Rogers, that court had jurisdiction to dispose of that claim. The
only other proceeding filed by the plaintiffs was the complaint in circuit court
in connection with their will contest, a proceeding that is still pending there.
It was subsequently determined by the circuit court that it lacked jurisdiction
to try the breach of contract claim. As previously noted, the circuit court
remanded the case to the trial court for the purpose of deciding the breach of
contract claim.
We believe that Rogers stands for the proposition that a claim for
breach of contract not to revoke a will, however it is styled, must be filed in
probate court, must be timely filed, and must satisfy the procedural
requirements of Tenn. Code Ann. § 30-2-307 (2001). Since the plaintiffs filed
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a claim in the trial court, we hold that it was properly addressed by that court.
In re Estate of Allen Dee Cook, 2004 WL 3021131, at **6-7.
Thus, in apparent contradiction to Junot, it appears that In re Estate of Allen
Dee Cook arguably may stand for the proposition that a challenge to a will based on the
contractual irrevocability of a prior will must proceed as a claim against an estate and adhere
to all of the procedural rules, including filing deadlines, pertinent to such a claim.4
Defendant argues that the Plaintiffs filed their complaint outside the statutory period for
claims against an estate.
We characterize this as being an “apparent contradiction to Junot” because this
Court in In re Estate of Allen Dee Cook did acknowledge that Rogers suggested that a claim
based on the alleged contractual irrevocability of a prior will could be pursued in alternative
ways. In re Estate of Allen Dee Cook, 2004 WL 3021131, at *6. This Court in In re Estate
of Allen Dee Cook noted that case did involve a claim filed in probate court. Id. Plaintiffs
in that case also had filed a separate complaint in circuit court as a will contest. Id. This
Court in In re Estate of Allen Dee Cook stated correctly that nothing in Rogers stood for the
proposition that a claimant could pursue both a claim filed in probate against the estate and
a separate will contest. Id. Here, the claimants have not attempted to pursue “different
remedies for the same cause of action in different forums at the same time.” Id. The
Plaintiffs in the instant appeal did not file a separate claim against Mrs. Brown’s estate in
addition to pursuing this will contest filed in the Probate Division of the Knox County
Chancery Court.
In Junot, as we have already observed, our Supreme Court addressed the merits
of a claim tried as a will contest based on an alleged violation of a contract to execute mutual
wills indicating that the trial court in Junot had jurisdiction and that such a will contest suit
is permissible. Junot, 759 S.W.2d at 657-58. We defer, as we must, to our Supreme Court,
notwithstanding In re Estate of Allen Dee Cook.5 We hold that the Trial Court did not err in
denying Defendant’s motion for summary judgment because the Trial Court did, in fact, have
subject matter jurisdiction to hear the Plaintiffs’ contract-based will contest claim.
We next address whether the Trial Court erred in denying Defendant’s motion
4
Junot is not discussed in In re Estate of Allen Dee Cook.
5
If the Supreme Court is asked to hear the appeal of our decision, we respectfully suggest that such
an appeal would be appropriate to allow the Supreme Court to state definitively exactly where and how such
an action or claim concerning the alleged contractual irrevocability of a prior will must be pursued.
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for summary judgment and instead finding that the June 13, 2002 contract to execute mutual
wills was supported by adequate consideration. Defendant argues that the remainder interest
granted to the Plaintiffs in the Irolla Property was “in consideration of [Mrs. Brown’s] being
tossed out in the street after Roy, Jr.’s death and her son getting an interest in real estate that
was not in existence.” We emphasize that we are not to inquire into the wisdom or rationale
of Mrs. Brown’s choices. Rather, the issue before us is whether the June 13, 2002 contract
to execute mutual wills was supported by adequate consideration.
Mutuality of promises is “ample” consideration for a contract. A mutual
promise “in itself would constitute a sufficient consideration.” Rodgers v. Southern
Newspapers, Inc., 214 Tenn. 335, 342, 379 S.W.2d 797, 800 (1964). See also Buraczynski
v. Eyring, 919 S.W.2d 314, 321 n. 6 (Tenn. 1996). In the instant appeal, it is clear that Mrs.
Brown and Mr. Brown exchanged promises in the June 13, 2002 contract to execute mutual
wills, and did just exactly that. As a result of those promises, Mrs. Brown and Mr. Brown
also agreed that their wills could not be altered without the consent of the other, which we
regard as additional evidence of consideration. The results of those promises are, again, not
the objects of our inquiry here.
We find the mutual exchange of promises between Mrs. Brown and Mr. Brown
adequate consideration to support their contract. Whether one characterizes the June 13,
2002 documents as modifications of the 1999 wills or new wills altogether, the June 13, 2002
contract to execute wills was supported by adequate consideration. The Trial Court properly
denied Defendant’s motion for summary judgment. We affirm the judgment of the Trial
Court.
Conclusion
The judgment of the Trial Court is affirmed. This cause is remanded to the
Trial Court for collection of costs below. Costs on appeal are taxed to the appellant,
Rockford Evan Estes, and his surety, if any, for which execution may issue if necessary.
_________________________________
D. MICHAEL SWINEY, JUDGE
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