The opinion
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs September 16, 2010
ARTHUR B. ROBERTS, ET AL. v. ROBERT BAILEY, ET AL.
Appeal from the Chancery Court for Loudon County
No. 11419 Frank V. Williams, III, Chancellor
No. E2010-00899-COA-R3-CV - FILED NOVEMBER 9, 2010
Robert Bailey, Lisa Bailey Dishner, and Richard Neal Bailey (“the Baileys”) were sued by
Arthur B. Roberts and Tia Roberts with regard to a boundary line dispute. The Baileys filed
a third party complaint against Dale Littleton, Alice Littleton, Kimber Littleton, Mark Lee
Littleton (“the Littletons”), and Charlotte Dutton seeking to quiet title to real property,
including the property involved in the boundary line dispute. The Baileys filed a motion for
partial summary judgment against the Littletons. After a hearing, the Trial Court entered an
order denying the motion for summary judgment and certifying the judgment as final
pursuant to Tenn. R. Civ. P. 54.02. The Baileys appeal to this Court. We affirm.
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 H ERSCHEL P. F RANKS,
P.J., and J OHN W. M CC LARTY, J., joined.
Katherine M. Hamilton, Knoxville, Tennessee, for the appellants, Robert Bailey, Lisa Bailey
Dishner, and Richard Neal Bailey.
Bianca F. White and Thomas M. Hale, Knoxville, Tennessee, for the appellees, Dale
Littleton, Alice Littleton, Kimber Littleton, and Mark Lee Littleton.
OPINION
Background
This case is before us with regard to the third party complaint filed by the
Baileys seeking to quiet title. The Baileys filed a motion for partial summary judgment. The
Trial Court found that “for purposes of the Motion, the parties agree that the material facts
are not in dispute and the chain of title as set forth in the third party complaint and exhibited
thereto is admitted.”
There are a few critical facts with regard to the motion for partial summary
judgment. In October of 1918, C.B. Bowling and his wife conveyed to N. B. Bailey and his
wife, Pearl Bailey, a tract of real property consisting of around 100 acres. N. B. Bailey died
in 1948 seized of the real property at issue in this case and leaving his wife, Pearl Bailey, and
four children. In their brief in support of their motion for partial summary judgment, the
Baileys alleged, in pertinent part, that the 1918 deed conveying the 100 acre tract to N.B.
Bailey and Pearl Bailey created a tenancy by the entireties despite the fact that the deed was
given during “the gap years between the emancipation of women and the enactment of the
Bejach statutes [that stated that tenancies by the entirety were not abolished in Tennessee.]”
After a hearing on the motion for partial summary judgment, the Trial Court
entered an order on March 30, 2010 denying the motion and holding, inter alia:
The rule of Gill v. McKinney, 140 Tenn. 549, 205 S.W. 416 (Tenn. 1918),
having been reaffirmed in Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695
(Tenn. 1956), has never been overturned by the Tennessee Supreme Court. As
a result, the property the subject of the Motion was owned by Nubert Bailey
and wife Pearl Bailey as tenants in common.
The Trial Court certified its March 30, 2010 order as a final judgment pursuant to Tenn. R.
Civ. P. 54.02.1 The Baileys appeal to this Court.
1
We recognize that the denial of the Baileys’ motion for partial summary judgment may not have
been appropriate to have been certified as a final judgment pursuant to Tenn. R. Civ. P. 54.02. If it was not
appropriate for the Trial Court’s order to have been certified as a final judgment pursuant to Rule 54.02, we,
in the interest of judicial economy, allow this appeal to proceed as an interlocutory appeal.
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Discussion
Although not stated exactly as such, the Baileys raise one issue on appeal,
whether the Trial Court erred in finding that the property acquired by Nubert Bailey and Pearl
Bailey was held as tenants in common and refusing to grant summary judgment.
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
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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
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).
Effective in January of 1914, our General Assembly enacted a statute
emancipating married women, which, in its current iteration provides, in pertinent part:
Married women are fully emancipated from all disability on account of
coverture, and the common law as to the disability of married women and its
effects on the rights of property of the wife, is totally abrogated, except as set
out in § 36-3-505, and marriage shall not impose any disability or incapacity
on a woman as to the ownership, acquisition or disposition of property of any
sort, or as to the wife’s capacity to make contracts and to do all acts in
reference to property that the wife could lawfully do, if the wife were not
married, but every woman now married, or hereafter to be married, shall have
the same capacity to acquire, hold, manage, control, use, enjoy and dispose of,
all property, real and personal, in possession, and to make any contract in
reference to it, and to bind herself personally, and to sue and be sued with all
the rights and incidents thereof, as if the wife were not married.
Tenn. Code Ann. § 36-3-504(a) (2005).
Our Supreme Court discussed the statute emancipating married women in the
1918 case of Gill v. McKinney and instructed:
We think the Legislature intended to abolish estates by the entireties by
the foregoing act. We also think that the language employed by it directly
effects that result. The estate is an incident of marriage which grew out of the
legal union of husband and wife. It arose from the disability of the wife on
account of marriage, and cannot exist without it. Because she had no legal
existence she could not take an equal moiety with her husband, but being
named with him as grantee in the deed, it was so unjust for her not to take at
all, the judges thought she must take in event she survived her husband. In that
case her legal existence would be restored to her and she could enjoy the land
conveyed in the deed. So the estate is a creature of the common law, and is an
incident of marriage; this being true, when the Legislature abolished the
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“common law as to the disabilities of married women” and its “effects on the
rights of property of the wife,” it must have included this particular estate. The
act further declared “that marriage shall not impose any disability or incapacity
on a woman as to the ownership, acquisition, or disposition of property of any
sort.” By express language of the statute such “disability” or “incapacity” as
to property was totally abrogated. We think this necessarily included estates
by the entireties.
Gill v. McKinney, 205 S.W. 416, 418 (Tenn. 1918).
Effective in April of 1919, our General Assembly reestablished tenancy by the
entireties by enacting a statute, which, in its current iteration provides: “Nothing in § 36-3-
504 shall be construed as abolishing tenancies by the entirety.” Tenn. Code Ann. § 36-3-505
(2005).
In 1924, our Supreme Court again discussed the statute emancipating married
women and stated:
Extended discussion of the doctrine of estates by entirety will serve no
purpose. The effect of [Tenn. Code Ann. § 36-3-504], was to abolish such
estates until restored by a subsequent act. Gill v. McKinney, 140 Tenn. 549,
205 S.W. 416; Kellar v. Kellar, 142 Tenn. 529, 221 S.W. 189. Lifting the
disabilities of coverture removed the legal unity from which the estate by
entirety was implied.
Hicks v. Sprankle, 257 S.W. 1044, 1045 (Tenn. 1924) (citation omitted). Thus, as recognized
in the compiler’s notes to Tenn. Code Ann. § 36-3-505, “there is a hiatus in the estate of
tenancy by the entireties, which extends from January 1, 1914, to April 16, 1919, and affects
deeds executed in that period.” Tenn. Code Ann. § 36-3-505 (2005) (Compiler’s Notes).
In the case now before us on appeal, the operative deed, i.e., the 1918 deed
from C.B. Bowling and his wife to N. B. Bailey and his wife, Pearl Bailey, was given during
the “hiatus in the estate of tenancy by the entireties.” Id. Thus, N.B. Bailey and Pearl Bailey
did not take title as tenants by the entireties.
The Baileys argue on appeal, in part, that our Supreme Court “implicitly
overruled” Gill v. McKinney in the 1974 case of Robinson v. Trousdale Cty., 516 S.W.2d 626
(Tenn. 1974). The Robinson Court discussed the statutes at issue, both the one emancipating
married women and the one reestablishing tenancy by the entireties, and surveyed the case
law in Tennessee with disfavor. Id. The Robinson Court specifically stated:
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We do not believe that the common law disability of coverture has any
sanction in our jurisprudence or any relevance in our society. At best it is
outmoded; at worst oppressive and degrading.
***
The fact that Tennessee clings to the common law concept of coverture
casts a shadow of doubt upon the intellectual consistency of our approach to
the whole area of equality of the sexes, and points up the need for bringing this
phase of our law into harmony with modern thinking.
We hold that the Married Women’s Act (Ch. 26, Acts of 1913), fully
and effectively eradicated the common law disability of coverture and that the
amendatory act, Chapter 126, Acts of 1919, did not have the legal effect of
restoring it.
We abolish the last vestige of the common law disability of coverture
in Tennessee.
We do not abolish the estate of tenancy by the entirety, but we strip it
of the artificial and archaic rules and restrictions imposed at the common law,
and we fully deterge it of its deprivations and detriments to women and fully
emancipate them from its burdens.
From this date forward each tenant shall have a joint right to the use,
control, incomes, rents, profits, usufructs and possession of property so held,
and neither may sell, encumber, alienate or dispose of any portion thereof
except his or her right of survivorship, without the consent of the other. Any
unilateral attempt will be wholly and utterly void at the instance of the
aggrieved tenant and any prospective purchaser, transferee, lessee, mortgagee
and the like will act at his peril.
Robinson, 516 S.W.2d at 631, 632.
While the Robinson Court showed disfavor for the state of the law in
Tennessee with regard to the issue then before it, the Robinson Court did not have before it
the issue of whether title taken by a husband and wife during the gap years, i.e., from January
1, 1914, to April 16, 1919, could have been taken as tenants by the entireties. Instead, the
Robinson Court dealt only with the issues of “the rights, benefits and privileges of the
tenants, the right of a tenant to convey his or her interest, and the common law disability of
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coverture” with regard to property held as an estate by the entireties. Id. at 627.
In essence, what the Baileys are requesting this Court to do in this appeal is
overrule the Supreme Court’s holding in Gill v. McKinney This we cannot do. It is not the
role of this Court to attempt to overrule Supreme Court precedent. If the Supreme Court’s
holding in Gill v. McKinney is to be overruled and reversed by a Tennessee court, it must be
the Tennessee Supreme Court that does so.
Given the law as it exists in Tennessee, we find that the Trial Court did not err
in finding:
The rule of Gill v. McKinney, 140 Tenn. 549, 205 S.W. 416 (Tenn. 1918),
having been reaffirmed in Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695
(Tenn. 1956), has never been overturned by the Tennessee Supreme Court. As
a result, the property the subject of the Motion was owned by Nubert Bailey
and wife Pearl Bailey as tenants in common.
As such, the Baileys were not entitled to summary judgment to quiet title. We, therefore,
affirm the Trial Court’s March 30, 2010 order.
Conclusion
The judgment of the Trial Court is affirmed, and this cause is remanded to the
Trial Court for collection of the costs below. The costs on appeal are assessed against the
appellants, Robert Bailey, Lisa Bailey Dishner, and Richard Neal Bailey, and their surety.
_________________________________
D. MICHAEL SWINEY, JUDGE
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