In Re: Estate of Donald Carl Battle

10/12/2017

IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

August 16, 2017 Session

IN RE: ESTATE OF DONALD CARL BATTLE

Direct Appeal from the Probate Court for Davidson County

No. 15P-116 David Randall Kennedy, Judge

No. M2017-00227-COA-R3-CV

This is a partition case. Appellants petitioned the trial court to order a partition sale of

property they own as tenants in common with Appellee. The court ordered the property

to be appraised and, upon receipt of the appraisal, held that the Appellee could buy out

Appellants’ interest in the property for their portion of the appraised value. Appellants

appeal the trial court’s failure to order a sale of the Property in accordance with

Tennessee Code Annotated section 29-27-201. We reverse the judgment of the trial court

and remand for further proceedings.

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

and Remanded

BRANDON O. GIBSON, J. delivered the opinion of the court, in which ARNOLD B. GOLDIN,

and KENNY ARMSTRONG, J.J., joined.

Robert John Notestine, III, Nashville, Tennessee, for the appellants, Ruby Jean Brown-

Battle, Carlton Battle, Adrienne Battle-Koger, and Christopher L. Battle.

John Richard Manson and Andre Philip Johnson, Nashville, Tennessee, for the appellee,

Bayside Builders, LTD.

OPINION

Donald Carl Battle died intestate on December 6, 2014. Mr. Battle’s wife and

three adult children are the heirs to his estate. On October 9, 2015, the administrator for

Mr. Battle’s estate and his heirs at law (collectively the “Estate”) filed a complaint to

partition property located at 1033 North 12th Avenue in Nashville, Tennessee (the

“Property”). The Estate asserted that it co-owned the Property with Bayside Buildings,

Ltd. (“Bayside”), as tenants in common, and that the parties had been unable to reach an

agreement regarding the sale or division of the Property between them. Further, the

Estate contended that it would be “in the best interest of the parties that the Property be

sold for cash at a private or public sale and that the proceeds be divided according to the

respective rights and interest of the co-owners, as provided in T.C.A. 29-27-101 through

T.C.A. 29-27-219.”

The Property was also the subject of a previous partition suit filed in 1990 by

Bayside’s predecessors in interest against Mr. Battle. That litigation ended in 1992 with

an agreed order stipulating that Mr. Battle owned a 25% interest in the Property and

Bayside’s predecessor owned a 75% interest.1 Based on this prior agreed order, Bayside

filed a motion for summary judgment in this case arguing that the doctrine of res judicata

barred the parties from re-litigating the issue of partition and the percentages of the

parties’ interests in the Property. Bayside also proposed to have the Property appraised

and offered to purchase the Estate’s 25% interest.

On August 29, 2016, the trial court partially granted Bayside’s motion for

summary judgment. The court held that there was no dispute that the Estate owns a 25%

interest in the Property and Bayside owns the remaining 75%. The percentages of

ownership interest are not at issue on appeal. The court found, however, that factual

determinations remained as to the value of the Property and the amount of any

contributions, advancements, or other recoupments to which the parties may be entitled.

Therefore, the court ordered that the Property be appraised, and if the parties could not

agree on a commercial appraiser by September 9, 2016, the court would choose the

appraiser. The court then set the matter for a “review hearing” on October 26, 2016.

At the review hearing on October 26, counsel for the Estate announced that the

parties had agreed on an appraiser, and the court set the next review conference for

December 7, 2016. On December 1, 2016, Bayside filed the appraisal of the Property

with the court. According to this appraisal, a fee simple interest in the Property was

worth $340,000.00. At the review conference on December 7, 2016, Bayside reasserted

its desire to purchase the Estate’s interest in the Property. By order entered December

15, 2016, the trial court granted Bayside’s request and ordered Bayside to tender

$85,000.00 (being 25% of $340,000.00) to the Estate by January 13, 2017, to purchase

the Estate’s portion of the Property. The court further ordered that in the event Bayside

did not pay the Estate $85,000.00 for their 25% of the appraised value by January 13,

2017, the Property would be immediately placed on the market for sale.

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The agreed order entered in the previous partition action also ordered Mr. Battle to sell his 25% interest

in the Property to his co-tenant for $35,000.00. That transaction apparently never occurred, and the trial

court in this case held that portion of the previous judgment to be unenforceable because neither party

renewed the judgment for more than ten years.

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On December 29, 2016, Bayside filed a motion with the trial court to allow it to

deposit the $85,000.00 into the clerk’s office until the Estate signed a quitclaim deed

transferring its interest to Bayside. The Estate filed an objection to Bayside’s motion on

January 9, 2017. In this response, the Estate generally objected to the trial court’s order

that required the Estate to convey its interest in the Property to Bayside based on the

value set forth in the appraisal rather than a value brought by a sale of the Property. The

Estate asserted that the trial court should have ordered the Property to be sold pursuant to

Tennessee Code Annotated section 29-27-201 as the Estate requested in its original

petition for partition. On January 13, 2017, the trial court rejected the Estate’s arguments

and again ordered Bayside be allowed to purchase the Estate’s 25% interest in the

Property based on the valuation in the appraisal. The court further granted Bayside’s

motion to deposit its funds in the clerk’s office pending delivery of a quitclaim deed by

the Estate. This January 13, 2017 order stated that it was a final order for purposes of

Rule 54.02 of the Tennessee Rules of Civil Procedure. On January 24, 2017, the Estate

filed a notice of appeal of the trial court’s January 13, 2017 order.

II. ISSUES PRESENTED

Appellants present the following issue for review on appeal, which we have

restated:

Whether the trial court erred in ordering Appellants to convey their interests

in the Property to the Appellee for the sum of $85,000.00 despite the sale

provisions found in Tennessee Code Annotated section 29-27-201?

Appellee does not list any additional issues in a specific “statement of the issues,” but it

does argue that Appellant’s notice of appeal was not timely and that this Court lacks

subject matter jurisdiction to hear this appeal.

IV. DISCUSSION

There are very few, if any, facts in dispute in this case. The issues raised by the

parties on appeal are questions of law. We review the trial court’s conclusions of law de

novo with no presumption of correctness. S. Constructors, Inc. v. Loudon Cnty. Bd. of

Educ., 58 S.W.3d 706, 710 (Tenn. 2001).

1. Timeliness of Appeal

As an initial matter, we address Bayside’s assertion that this Court lacks subject

matter jurisdiction to hear the Estate’s appeal because the Estate’s notice of appeal was

not timely filed. Bayside argues that the trial court’s order entered on December 15,

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2016 constituted the final judgment in this case, thereby making the Estate’s notice of

appeal filed on January 24, 2017 untimely. We disagree. “A final judgment [ ] is one

that resolves all of the parties’ claims and leaves the court with nothing to adjudicate.”

Ball v. McDowell, 288 S.W.3d 833, 836-37 (Tenn. 2009). The trial court’s order on

December 15, 2016, left several loose ends, including the contingency plan for a court-

ordered sale of the Property if Bayside failed to tender the $85,000.00 to purchase the

Estate’s interest in the Property. Further, Bayside filed a motion regarding payment of

the purchase money into the clerk’s office on December 29, 2016, which was after the

December 15, 2016 order, and upon which a hearing was subsequently held. The

December 15, 2016 order of the trial court did not leave the trial court with nothing else

to do in this case and, therefore, did not constitute an appealable final order.

The final judgment in this case was the trial court’s order on January 13, 2017,

which specifically stated that it was a final order for purposes of Rule 54.02 of the

Tennessee Rules of Civil Procedure. We hold that the Estate properly complied with

Rule 4 of the Tennessee Rules of Appellate Procedure (which requires a notice of appeal

be filed within thirty days of entry of trial court’s judgment) by filing a notice of appeal

eleven days after entry of the final order in this case.

2. Failure to Order Partition Sale

We now turn to the Estate’s allegation that the trial court erred in its interpretation

and application of Tennessee Code Annotated section 29-27-201, which states:

Any person entitled to a partition of premises, under part 1 of this chapter,

is equally entitled to have such premises sold for division, in the following

cases:

(1) If the premises are so situated that partition thereof cannot be made; or

(2) Where the premises are of such a description that it would be manifestly

for the advantage of the parties that the same should be sold instead of

partitioned.

Tenn. Code Ann. § 29-27-201. Both parties agree that the Property should not be divided

in kind. However, the trial court’s order in this case does not provide the Estate with a

sale of the Property as contemplated by Tennessee Code Annotated section 29-27-201.

The court simply adopted a price, albeit one that was submitted by an appraiser, and

allowed one party to buy the other party’s interest for a court-specified amount.

Tennessee courts have considered analogous cases in Yates v. Yates, 571 S.W.2d

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293 (Tenn. 1978) and Walton v. Seawood, Shelby Equity No. 35, 1986 WL 14054 (Tenn.

Ct. App. Dec. 11, 1986). In Yates, a partition suit, a chancellor divested one co-owner of

his interest in the subject real estate and vested that interest in another co-tenant. See

Yates, 571 S.W.2d at 295. In reversing the trial court’s order, the Tennessee Supreme

Court held that although the chancery court “has a statutory and inherent right to adjust

the equities and settle all claims between or among the parties, it has no power to divest

title out of one tenant and vest it in another.” Id. at 296. In Walton, which was also a

partition suit, the trial court adopted the clerk and master’s determination of the fair

market value of the property and ordered the property interests be divested out of some of

the co-tenants and vested in another co-tenant. Walton, 1986 WL 14054 (Tenn. Ct. App.

Dec. 11, 1986). Reversing the trial court, this Court held that the case was controlled by

our Supreme Court’s holding in Yates and concluded that “[t]he statement by the

Supreme Court as to the lack of power of the court to divest title out of one tenant and

into another is clear and without any qualification.” Id. at *2. Likewise, we hold that

this case is controlled by the principle set forth in Yates and that the trial court improperly

ordered the interest of one co-tenant to be divested and vested in another co-tenant for a

court-ordered price.

Bayside devotes much of its brief on appeal to the argument that one tenant in

common may lawfully purchase the interest of another tenant in common under a decree

of sale for partition. We agree with Bayside that there are Tennessee cases that reflect

the general ability of one co-owner to purchase the interest of another co-owner at a sale.

See e.g., Davis v. Solari, 177 S.W. 939 (Tenn. 1915). Nothing in this Opinion would

prevent Bayside from being the winning buyer at either a private or public sale of the

Property. Such a scenario is distinguishable from the trial court’s order, however,

because it contemplates an actual sale of the subject property. A court-ordered

divestiture of property interests at a court-determined price is not a sale as contemplated

by Tennessee Code Annotated section 29-27-201.

IV. CONCLUSION

For the foregoing reasons, we reverse the order of the trial court and remand for

further proceedings consistent with this Opinion. Costs of this appeal are taxed to the

Appellee, Bayside Builders, LTD., for which execution may issue if necessary.

_________________________________

BRANDON O. GIBSON, JUDGE

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