In Re: Estate of Betty D. Gentry Meek

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

February 20, 2014 Session

IN RE ESTATE OF BETTY D. GENTRY MEEK

Appeal from the Chancery Court for Montgomery County

No. MC CH CV PB 12-72 Laurence M. McMillan, Chancellor

No. M2013-01070-COA-R3-CV - Filed June 4, 2014

The surviving husband who was excluded from his wife’s will filed a petition for

elective-share, year’s support, exempt property, and homestead. The executors of her estate

opposed the petition claiming the marriage was void ab initio because it was procured by

fraud and misrepresentations, specifically alleging that he lied on the marriage license about

his age and number of prior marriages. Alternatively, if he is the surviving spouse, they

contend he is equitably estopped to assert such claims for the same underlying reasons. The

trial court summarily dismissed the petition finding “(1) the marriage between [Plaintiff] and

the Decedent was void ab initio due to the fraud perpetrated by [Plaintiff] in connection with

false information supplied by him on the application for the parties’ marriage license; and

(2) equitably estopped as a matter of law.” Based on these findings the trial court dismissed

all claims. We have determined the marriage was not void ab initio; whether the marriage

was voidable is now moot for any right to avoid the marriage abated upon the wife’s death.

As for equitable estoppel, we have determined that summary judgment was inappropriate

because essential facts are either disputed or not in the record, including whether the

decedent relied on the misrepresentations to marry him. Accordingly, we reverse the award

of summary judgment and remand for further proceedings consistent with this opinion.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court

Reversed and Remanded

F RANK G. C LEMENT, J R., P.J., M.S., delivered the opinion of the Court, in which A NDY D.

B ENNETT and R ICHARD H. D INKINS, J.J., joined.

Patrick Matthew Potempa, Nashville, Tennessee, for the appellant, The Estate of Paul H.

Meek, Sr.

Larry B. Watson, Clarksville, Tennessee, for the appellees, John L. Mitchell and Katherine

Young.

OPINION

Paul H. Meek, Sr. (“Plaintiff”) was born on November 27, 1927. Betty D. Gentry

Meek (“the decedent”) was born on June 5, 1930. They both grew up in Clarksville,

Tennessee and, although Plaintiff was two years older than the decedent, they attended

Clarksville High School at the same. It is undisputed that they were friends at the time but

it is disputed whether they were sweethearts in high school. She graduated in 1947; whether

he graduated is not in the record.

Thereafter, the decedent married Charles C. Gentry, Sr., with whom she had four

children; they remained in the Clarksville area throughout their marriage of more than fifty

years. Mr. Gentry died in February 2002.

The record suggests that Plaintiff and the decedent had little if any contact until 2005,

with the exception of the decedent’s fiftieth high school reunion in 1997, when the decedent

was accompanied by her husband Charles Gentry, and Plaintiff was accompanied by his wife.

The reason the decedent and Plaintiff seldom if ever saw each other after high school is that

Plaintiff spent most of his adult life in Florida.

As noted above, Charles Gentry, the decedent’s husband of fifty years, died in 2002.

Some three years later, after learning of Mr. Gentry’s death, Plaintiff appeared at the

decedent’s home in 2005 and proclaimed his love for the decedent. He stated that he had

waited all of his life to be with her. The decedent was obviously moved by such

proclamation, because she and Plaintiff began spending a lot of time together, courting so-to-

speak, a term that was popular in their youth.1

Early in the relationship, Plaintiff proposed marriage but before they got married, the

decedent discovered that Plaintiff was married to Sharon Pitts who, at the time, was residing

in California. Although the decedent was initially most upset, she obviously forgave him for

not only did the decedent remain in the relationship, she allowed Plaintiff to reside with her

in her home in Clarksville.

While still married to Ms. Pitts, Plaintiff asked the decedent to buy a home for them

in Florida, where he had been living for years, so they could live together part of the year in

Florida and the rest of the year in Clarksville; however, he also recommended that she put

the title to the Florida home in her name only until he could divorce Ms. Pitts so Ms. Pitts

1

Courtship is described as the activities that occur “when people are developing a romantic

relationship that could lead to marriage or the period of time when such activities occur; the act, process, or

period of courting.” Merriam-Webster, http://www.merriam-webster.com/dictionary/courtship.

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would have no claim to that house. Using her own funds, the decedent purchased a home in

Florida, which was initially titled in her name only; the house cost $323,000 and the decedent

purchased it with a down payment of $101,580.78.

Plaintiff divorced Ms. Pitts on July 10, 2006. Five weeks after divorcing Ms. Pitts,

Plaintiff and the decedent applied for their marriage license. Although Plaintiff had been

married seven previous times, he wrote on the marriage application that he had three prior

marriages. He also listed his birth date on the marriage license as “11-18-34”, and his age as

“71”, although he was born on November 27, 1927, and was 78 years old at the time.

Four days later, on August 19, 2006, the decedent and Plaintiff got married in

Clarksville; several of the decedent’s friends and relatives attended the wedding.

After the marriage, the decedent executed a deed to convey joint title to the Florida

home in both her name and Plaintiff, with the right of survivorship. The record also shows

that the decedent purchased a vehicle for Plaintiff, the title to which was put in his name

only. Plaintiff also purchased another vehicle using the decedent’s credit card. The title to

this vehicle was in both names with right of survivorship.

Other than the undisputed fact that the decedent and Plaintiff held themselves out as

being a happily married couple, the record is relatively silent concerning what occurred

during the rest of the marriage, which lasted five years and seven months.

The decedent died on March 12, 2012, approximately two weeks after undergoing

back surgery. Although it is not clear, it appears from the record that at the time of decedent’s

death, Plaintiff was incapacitated and living with his family in Florida.

The affidavit of the decedent’s daughter reveals that immediately after her mother’s

death, she contacted Plaintiff asking him to sign the Consent Order for the disposition of her

remains, which was necessary as he was the surviving spouse. He either refused to consent

or failed to sign the form; in any event, the decedent’s children were forced to have the

funeral without her ashes or body. Plaintiff subsequently signed the Consent Order and the

decedent’s remains were cremated eleven days after her death.

The decedent’s Last Will and Testament, which expressly excluded Plaintiff as a

beneficiary, was admitted to probate on March 20, 2012, in the Montgomery County

Chancery Court; John L. Mitchell and Katherine Young (“the Executors”) were appointed

co-executors of her estate.

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On March 28, 2012, Plaintiff filed a petition for Elective-Share, Year’s Support,

Exempt Property, and Homestead; he filed an amended petition on April 18, 2012.2 The

Executors filed an answer to the Amended Petition denying all claims and asserting that the

purported marriage was void ab initio and Plaintiff should be estopped from asserting his

claims. The Executors contended Plaintiff had a history of lies and deception that repeated

itself with his pursuit of the decedent.3

The Executors subsequently filed a Motion for Summary Judgment seeking to dismiss

all claims on the following grounds: the marriage was void ab initio as a result of Plaintiff

providing intentionally false, misleading, and fraudulent information on the marriage

application in violation of Tenn. Code Ann. § 36-3-104, which they contend constitutes a

Class C misdemeanor under Tenn. Code Ann. § 36-3-112; and based upon equitable

estoppel.

The motion for summary judgment was heard on April 5, 2013. In an order entered

on April 16, 2013, the trial court summarily dismissed the petition on two grounds, finding

the marriage was void ab initio, due to fraud perpetrated by Plaintiff in connection with the

false information on the marriage application, and equitable estoppel.

2

In both petitions he claimed, inter alia, a 30% elective-share (the percentage share for marriages

of six to nine years), although they had been married for less than six years when the decedent died. Because

they were married for only five years, the appropriate elective-share percentage would be 20%. See Tenn.

Code Ann. § 31-4-101.

3

The Executors rely on the following facts, inter alia, to establish Plaintiff’s history of lies,

deception, and predatory conduct. Plaintiff married Ms. Pitts in February 1989. When Ms. Pitts first met

Plaintiff, he represented to her that he had no previous marriages and no children; however, she later found

out that he had been married two times and had five children who lived in Florida. Ms. Pitts ended the

relationship and moved away, but sixteen years later Plaintiff and Ms. Pitts rekindled their relationship.

Before Plaintiff and Ms. Pitts married, he admitted to her that he had been married three times, but failed to

disclose a fourth marriage, and that he had six children. However, Plaintiff did not disclose to Ms. Pitts or

Ms. Gentry that one of his sons had been convicted of first degree murder and rape. Ms. Pitts stated that

Plaintiff was very charismatic and pleasing to be around, but at the same time, he also had an evil side and

frequently lied about numerous things. Ms. Pitts stated that during their marriage, Plaintiff tried to get her

to purchase a home in Florida for him and his children, but she never agreed. Ms. Pitts said “[Plaintiff] ruined

my life and took everything I had, except the California condo,” which she had previously purchased.

Further, although the Plaintiff told Ms. Gentry he had done well financially, she paid the majority of his

expenses and also bought him two vehicles. Further, at the request of Plaintiff, she bought a second home

in Florida which was purchased with her funds and was initially put in her name alone; the Executors contend

this was done to avoid Ms. Pitts from receiving any interest in the home. After the Plaintiff divorced Ms.

Pitts, the home was transferred into both Ms. Gentry and the Plaintiff’s names with the right of survivorship.

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Plaintiff appeals contending the marriage was not void, merely voidable. Plaintiff also

contends that the right, if any, the decedent may have had to avoid the marriage abated at her

death. Plaintiff also contends the trial court erred in finding that he was equitably estopped

to assert his claims.

S TANDARD OF R EVIEW

This appeal arises from the grant of summary judgment. Summary judgment is

appropriate when a party establishes that there is no genuine issue as to any material fact and

that a judgment may be rendered as a matter of law. Tenn. R. Civ. P. 56.04; Stovall v. Clarke,

113 S.W.3d 715, 721 (Tenn. 2003). It is appropriate in virtually all civil cases that can be

resolved on the basis of legal issues alone. Byrd v. Hall, 847 S.W.2d 208, 210 (Tenn. 1993);

Pendleton v. Mills, 73 S.W.3d 115, 121 (Tenn. Ct. App. 2001). It is not appropriate when

genuine disputes regarding material facts exist. See Tenn. R. Civ. P. 56.04.

To be entitled to summary judgment, the moving party who does not bear the burden

of proof at trial shall prevail if it submits affirmative evidence that negates an essential

element of the nonmoving party’s claim or demonstrates that evidence provided by the

nonmoving party is insufficient to establish an essential element of the nonmoving party’s

claim. Tenn. Code Ann. § 20-16-101.

Summary judgments do not enjoy a presumption of correctness on appeal. BellSouth

Adver. & Publ’g Co. v. Johnson, 100 S.W.3d 202, 205 (Tenn. 2003). The resolution of a

motion for summary judgment is a matter of law, thus, we review the trial court’s judgment

de novo with no presumption of correctness. Martin v. Norfolk Southern Ry. Co., 271 S.W.3d

76, 84 (Tenn. 2008). The appellate court makes a fresh determination that the requirements

of Tenn. R. Civ. P. 56 have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51

(Tenn.1977).

A NALYSIS

We begin our analysis mindful of the sound social principle and public policy

espoused by our Supreme Court more than one hundred years ago: “In the interest of social

order, the presumption in favor of the marriage is very strong, and the pressure of that

presumption is felt at every stage of the inquiry.” Gamble v. Rucker, 137 S.W. 499 (Tenn.

1911). It is also well established that “the law of marriage in Tennessee is not controlled by

rules of the common law, but is a matter of statute.” Bryant v. Townsend, 221 S.W.2d 949,

950 (Tenn. 1949). Furthermore, due to public policy concerns, “the State is an unofficial

‘third party’ to every divorce or annulment.” Guzman v. Alvares, 205 S.W.3d 375, 381 (Tenn.

2006) (citing Johnson v. Johnson, 16 So.2d 401, 404 (Ala. 1944)).

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The Executors, being the party challenging the validity of the marriage, bear the

burden of rebutting the presumptions by providing “cogent and convincing” evidence that

the marriage was invalid. Guzman, 205 S.W.3d at 380 (citing Aghili v. Saadatnejadi, 958

S.W.2d 784, 789 (Tenn. Ct. App. 1997).

I. V OID OR V OIDABLE M ARRIAGES

The Executors contend the marriage was void ab initio. Plaintiff contends it was not

void, merely voidable. We therefore begin our analysis by recognizing the distinction

between a void marriage and a voidable marriage.

A marriage that is void is a nullity from the beginning “as if it had never been.” Brown

v. Brown, 29 S.W.3d 491, 494-495 (Tenn. Ct. App. 2000) (classifying marriages prohibited

by law as void from the beginning); Gordon v. Pollard, 336 S.W.2d 25, 27 (Tenn. 1960)

(recognizing that a marriage prohibited by statute is void “as if it had never been”). Bigamous

marriages, for example, are void from the beginning because they are prohibited by statute.

See Gordon v. Pollard, 336 S.W.2d 25, 27 (Tenn. 1960).

“A voidable marriage differs from a void marriage in that the former is treated as valid

and binding until its nullity is . . . declared by a competent court.” Brewer v. Miller, 673

S.W.2d 530, 532 (Tenn. Ct. App. 1984) (citing MacPherson v. MacPherson, 496 F.2d 258,

262 (6th Cir. 1974)). A voidable marriage is a valid marriage until avoided by appropriate

legal proceeding. See Woods v. Woods, 638 S.W.2d 403, 405 (Tenn. Ct. App. 1982) (stating

the marriage was “a valid marriage which at most was voidable because of the impotence of

the deceased and was valid until avoided by the legal proceeding instituted by defendant.”).

A. V OID M ARRIAGES

A marriage is void ab initio if it is entered into:

(1) when either party was already lawfully married;

(2) . . .

(3) when the parties are within prohibited degrees of kinship; or

(4) when, for any other reason, the marriage was prohibited by law, and its

continuance is in violation of law.

Coulter v. Hendricks, 918 S.W.2d 424, 426 (Tenn. Ct. App. 1995) (quoting 2 Gibson’s Suits

in Chancery § 1147 note 10 (5th ed. 1956)) (citations omitted) (emphasis added).

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The Executors contend “the marriage was prohibited by law, and its continuance is

in violation of law” and, therefore, void because Plaintiff falsely signed the application for

marriage. In making this assertion the Executors rely on what they believe is the combined

effect of two statutes. One is Tenn. Code Ann. § 36-3-112, which states that “fraudulently

signing or knowingly using any false document purporting to be one provided for in . . . [a

marriage license application] . . . is a Class C misdemeanor.” The other is Tenn. Code Ann.

§ 36-3-306, which states that “[n]o marriage shall be valid, whether consummated by

ceremony or otherwise, if the marriage is prohibited in this state.” We find no merit to this

contention.

It is undisputed that Plaintiff misrepresented his date of birth, age, and number of prior

marriages when he completed and signed the application for a marriage license and Tenn.

Code Ann. § 36-3-112 states that one commits a misdemeanor by doing such. Thus, Plaintiff

may have committed a misdemeanor; however, the Executors have cited no authority that

states that the resulting marriage was “prohibited by law,” or that the continuance of the

marriage “is in violation of law,” which are essential to hold the marriage void instead of

voidable. To the contrary, the fact that Plaintiff fraudulently signed the application may

provide grounds to rescind or annul the resulting marriage, but that fact alone does not render

the marriage a nullity as if it never occurred.

Our public policy would never condone the potential consequences, indeed abuses,

that could result if we accepted the Executors’ novel theory. For example, an honorable lady

faithfully enters into a marriage not knowing that her spouse fraudulently signed the marriage

application and then, years later, her spouse insists the marriage was void ab initio, that she

was never married, despite the fact her “marriage” was presided over by a minister and

witnessed by family and friends who attended the wedding.

The Executors have not identified any statute that prohibited the marriage of Plaintiff

and the decedent. Indeed, the statute the Executors rely on does not prohibit their marriage,

it merely prohibited the fraudulent signing of an official document. Thus, Plaintiff’s act of

fraudulent signing and/or providing false information on the marriage application did not

prohibit the marriage. It may, however, have provided the decedent with grounds for the

annulment of the marriage. Accordingly, because the parties’ marriage was not prohibited

by statute, it was not void, merely voidable. See Coulter, 918 S.W.2d at 427 (When a

marriage is not prohibited by statute and the grounds the grounds for the annulment of the

marriage “are such that the parties may subsequently ratify the marriage, [the marriage] is

voidable, rather than void.”).

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For the foregoing reasons, we find no merit to the Executors’ contention that the

marriage was void ab initio due to Plaintiff providing false information on the application

for the parties’ marriage license.

B. V OIDABLE M ARRIAGES

Marriages that are voidable, but not void, are those entered into:

(1) when either party was insane; or

(2) the complainant was under duress;

(3) was under the age of consent;

(4) when the consent was obtained by force, or fraud, and was given by

mistake;

....

(7) when, for any other reason, the marriage was not binding on the

complainant[.]

Coulter, 918 S.W.2d at 426 (quoting 2 Gibson’s Suits in Chancery § 1147 note 10 (5th ed.

1956)) (emphasis added).

Contrary to the Executors’ insistence that the marriage was void due to Plaintiff’s

fraudulent signing the marriage application, our courts have consistently held that a marriage

procured by fraud is, at most, a voidable marriage. Gordon v. Pollard, 336 S.W.2d at 27

(citations omitted). In Gordon the wife was under age at the time of marriage and the license

was procured by misrepresentation or fraud and, as the court explained, that circumstance

rendered the marriage voidable, but not void. Id. Thus, when the consent to marriage was

obtained by fraud, the marriage is not void; instead, it is “treated as valid and binding until

its nullity is ascertained and declared by a competent court.” Brewer, 673 S.W.2d at 532.

The parties have conceded that if the marriage between Plaintiff and the decedent was

determined to be a voidable but not a void marriage, then the decedent’s right to set aside the

marriage abated at her death. See Gordon, 336 S.W.2d at 27 (stating the wife’s complaint for

annulment abated upon the death of her husband).4 We, therefore, respectfully reverse the

4

The right to set aside a voidable marriage, to obtain an annulment, is akin to the right to seek a

divorce and “a cause of action for divorce is purely personal, and it has been held that such a cause of action

terminates on the death of either spouse; and if an action for a divorce is commenced, and one of the parties

dies thereafter, but before the entry of the final decree, the action abates.” Steele v. Steele, 757 S.W.2d 340,

342 (Tenn. Ct. App. 1988).

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trial court’s grant of summary judgment in favor of the Executors on the ground the marriage

was void ab initio.

II. E QUITABLE E STOPPEL

We have determined that the marriage was not void and that any right to avoid or

annul the marriage abated with the death of the decedent. Therefore, Plaintiff was the

surviving spouse of the decedent.5 Nevertheless, the Executors insist he is equitably estopped

to assert any of the claims of a surviving spouse.

Our ruling and the Executors’ assertion of equitable estoppel leaves this appeal in a

circumstance similar to that in Woods v. Woods, 638 S.W.2d at 406, after the court ruled that

the right to annul the marriage abated upon the death of the deceased spouse. Like here, the

court held that the defendant’s marriage to her deceased husband was a voidable marriage;

thus, the marriage remained valid unless and until avoided by the legal proceeding. Id. The

husband died while the complaint for annulment was pending and the court ruled that the

right to an annulment abated upon his death.6 Id. Because the marriage was not annulled, the

parties were still married when the husband died and the court ruled that the wife was the

surviving spouse of her deceased husband. Id. The court also ruled that she was entitled to

dissent from her husband’s will unless she was, “under the facts in the instant case, judicially

estopped.” Id. The only difference in the cases is that the issue here is whether Plaintiff is

equitably estopped to assert his claims as a surviving spouse.

For reasons explained below, we have separated our discussion of the claims for

elective-share and exempt property from those for homestead and year’s support.

A. Elective-Share and Exempt Property

We determined that Plaintiff was married to the decedent at the time of her death;

therefore, Plaintiff was her surviving spouse. As the surviving spouse, he is statutorily

entitled to awards for elective-share and exempt property from the decedent’s estate, with the

only issue being the award he is entitled to receive for each claim. See Tenn. Code Ann. §

31-4-101(a)(1) (“The surviving spouse . . . who elects against a decedent’s will, has a right

of election . . . to take an elective-share amount equal to the value of the decedent’s net estate

. . . determined by the length of time the surviving spouse and the decedent were married to

5

Plaintiff, Paul H. Meek, Sr., died while this appeal was pending; the Estate of Paul H. Meek, Sr.,

has been substituted as the plaintiff/appellant pursuant to Tenn. R. App. P. 19(a).

6

The ground for annulment in Woods was the impotence of the husband. Woods, 638 S.W.2d at 405.

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each other[.]” (emphasis added)); Tenn. Code Ann. § 30-2-101(a) (“The surviving spouse .

. . who elects against a decedent’s will, is entitled to receive from the decedent’s estate the

following exempt property[.]” (emphasis added)). As our courts have consistently held that

“the right to an elective or distributive share is not dependent on whether the surviving

spouse deserves to enjoy such benefits.” Young v. Hudgens, 1989 WL 71041, *6 (Tenn. Ct.

App. June 30, 1989). Therefore, equitable estoppel is not an available defense to a surviving

spouse’s claim for elective-share and exempt property.

Because Plaintiff established that he was the surviving spouse of the decedent, he is

entitled to an award of an elective-share and to receive the exempt property; therefore, we

reverse the summary dismissal of Plaintiff’s claims for an elective share and exempt property

and, on remand, the trial court shall determine the award he is entitled to receive as his

elective share and to specific the exempt property he is entitled to receive. See Tenn. Code

Ann. §§ 31-4-101 and 30-2-101.

B. Homestead and Year’s Support

The foregoing notwithstanding, “wholly different considerations are present where

homestead and the statutory year’s support are involved.” Fogo v. Griffin, 551 S.W.2d 677

(Tenn. 1977) (citations omitted). For example, our Supreme Court held “a widow who

abandons her husband and is guilty of adultery forfeits her right to homestead and the

statutory year’s support.” Id. at 678; see also, Keicher v. Mysinger, 198 S.W.2d 330, 333

(Tenn. 1946), and Prater v. Prater, 9 S.W. 361 (Tenn. 1888). Further, “[t]he court may

consider the totality of the circumstances in fixing the allowance [for a year’s support]

authorized by [Tenn. Code Ann. 30-2-102(a)].” In re Estate of Grass, M2005-00641-COA-

R3-CV, 2008 WL 2343068, *20 (Tenn. Ct. App. June 4, 2008), perm. to appeal denied,

(Tenn. 2009) (emphasis added). Therefore, the trial court is to consider the totality of the

circumstances when a surviving spouse’s claim of homestead and year’s support are at issue.

Id. Accordingly, equitable estoppel may be a defense to a surviving spouse’s claim for

homestead and a year’s support.

Estoppel is an affirmative defense identified in Tenn. R. Civ. P. 8.03. “An affirmative

defense pleads a matter that is not within the plaintiff’s prima facie case.” George v.

Alexander, 931 S.W.2d 517, 527 (Tenn. 1996) (citing 2A James W. Moore, et al., Moore’s

Federal Practice 8.27[1] (2d ed. 1995)). Accordingly, when a defendant asserts an affirmative

defense, the defendant has the burden of proving facts in support of that defense.7 Carr v.

7

An exception, which does not apply in this case, is when the facts that support the affirmative

defense are part of the plaintiff’s prima facie case; in which event the plaintiff still bears the burden of proof.

(continued...)

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Borchers, 815 S.W.2d 528, 532 (Tenn. Ct. App. 1991). The Executors asserted the

affirmative defense of equitable estoppel; accordingly, the Executors bear the burden of

proving facts in support of that defense. Moreover, “[e]stoppel is not favored and it is the

burden of the party seeking to invoke the doctrine to prove each and every element thereof.”

Crye-Leike, Inc. v. Carver, 415 S.W.3d 808, 823 (Tenn. Ct. App. 2011) (citations omitted)

(emphasis added).

“Estoppel is a branch of the law of evidence and has its foundation in fraud[.]” Rogers

v. Colville, 238 S.W. 80, 83 (Tenn. 1922) (citing Bigelow on Estoppel, 437; 10 R. C. L. 691).

The essential elements of an equitable estoppel as related to the party estopped

are said to be (1) Conduct which amounts to a false representation or

concealment of material facts, or, at least, which is calculated to convey the

impression that the facts are otherwise than, and inconsistent with, those which

the party subsequently attempts to assert; (2) Intention, or at least expectation

that such conduct shall be acted upon by the other party; (3) Knowledge, actual

or constructive of the real facts.

As related to the party claiming the estoppel they are (1) Lack of knowledge

and of the means of knowledge of the truth as to the facts in question; (2)

Reliance upon the conduct of the party estopped; and (3) Action based thereon

of such a character as to change his position prejudicially[.]

Crye-Leike, Inc. v. Carver, 415 S.W.3d at 823 (citations omitted) (emphasis added).

At a minimum, estoppel requires “(1) reliance upon the statement or actions of

another without opportunity to know the truth and (2) action based on that reliance which

results in detriment to the one acting.” Id. (citations omitted).

The party seeking summary judgment bears the burden of demonstrating that no

genuine disputes of material fact exist and that the party is entitled to judgment as a matter

of law, Godfrey v. Ruiz, 90 S.W.3d 692, 695 (Tenn. 2002); therefore, the Executors bear the

burden of demonstrating that no genuine disputes of material fact exist.

7

(...continued)

See Administrative Resources Inc. v. Barrow Group, L.L.C., 210 S.W.3d 545, 556 (Tenn. Ct. App. 2006);

see also Carr v. Borchers, 815 S.W.2d 528, 532 (Tenn. Ct. App. 1991) (“Where a defendant . . . asserts the

affirmative defense . . . it has the burden of proving facts in support of that defense unless it is a part of the

plaintiff’s prima facie proof.”).

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The Executors insist it is undisputed that the decedent “relied and acted on his

representations and misrepresentations to her prejudice.” Plaintiff, however, insists there are

genuine disputes about whether the decedent lacked knowledge of his representations and,

further, there are no facts in the record to support a determination that the decedent relied

upon them. We have determined that Plaintiff has correctly stated the facts in this record; we

have also determined that much of the Executors’ contentions are just that, contentions, not

facts.

It is undisputed that Plaintiff misrepresented his age on the marriage application;

however, there is no evidence that the decedent married him in reliance on that fact or that

she would not have married him had she known the representation was false. We also doubt

this misrepresentation would have been a concern realizing they attended high school at the

same time more than fifty years prior to their marriage, but we may not weigh the evidence

at the summary judgment stage. What is important is that there is no evidence that the

decedent married him in reliance on that fact.

Plaintiff’s misrepresentation of the number of his prior marriages, however, could be

a more serious misrepresentation matter; nevertheless, this record contains no evidence,

disputed or undisputed, that the decedent would not have married him had she known the

truth concerning his prior marriages. Moreover, we are to view the facts at summary

judgment in the light most favorable to Plaintiff, as the non-moving party, including all

reasonable inferences to be drawn therefrom, and it is reasonable to infer that the decedent

did not and would not have relied on the misrepresentations in the application for marriage

because she had already decided to marry him; otherwise, there would have been no need to

obtain a marriage license.

“Summary judgments are not permitted when a case’s determinative facts are in

dispute. . . . If reasonable minds could justifiably reach different conclusions based on the

evidence at hand, then a genuine question of fact exists.” Green v. Green, 293 S.W.3d 493,

513-14 (Tenn. 2009) (citing Martin v. Norfolk S. Ry., 271 S.W.3d at 84; Louis Dreyfus Corp.

v. Austin Co., 868 S.W.2d 649, 656 (Tenn. Ct. App. 1993). For these reasons, we have

concluded that the Executors failed to establish that the relevant facts at issue are undisputed.

Accordingly, it was inappropriate to summarily dismiss the claims for homestead and year’s

support on the basis of equitable estoppel.

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I N C ONCLUSION

The judgment of the trial court is reversed, and this matter is remanded for further

proceedings consistent with this opinion. Costs of appeal are assessed against the appellees.

______________________________

FRANK G. CLEMENT, JR., JUDGE

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