# Leslie Johansen v. Leon Sharber

> Court of Appeals of Tennessee · February 12, 2018

URL: https://www.frixlaw.com/law-library/cases/4244533

## Case

- **Court:** Court of Appeals of Tennessee
- **Decided:** February 12, 2018
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Chief Judge D. Michael Swiney
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

02/12/2018
IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
December 6, 2017 Session

LESLIE JOHANSEN v. LEON SHARBER, ET AL.

Appeal from the Circuit Court for Rutherford County
No. 69761 Mitchell Keith Siskin, Judge

No. M2017-00639-COA-R3-CV

This appeal concerns a release of liability. Leslie Johansen (“Johansen”) was a passenger
in an ATV accident that resulted in the death of the driver, Lee Martin Sharber. Johansen
sued Leon Sharber, Personal Representative of Lee Martin Sharber’s Estate, in the Circuit
Court for Rutherford County (“the Trial Court”) alleging negligence. Johansen’s
uninsured motorist carrier, GEICO Casualty Company (“GEICO”), was joined as a
defendant. While the tort action was underway and without GEICO’s approval, Johansen
executed a release of claim regarding the Personal Representative which was filed in the
Probate Court for Rutherford County (“the Probate Court”). GEICO filed a motion for
summary judgment, arguing that, as a result of the release, Johansen forfeited any
recovery rights she had against GEICO. The Trial Court granted summary judgment to
GEICO. Johansen appealed. We hold that the release executed by Johansen served to
release GEICO from any liability arising from Johansen’s personal injury claim
stemming from the ATV accident. We affirm the judgment of the Trial Court.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit Court Affirmed;
Case Remanded

D. MICHAEL SWINEY, C.J., delivered the opinion of the court, in which RICHARD H.
DINKINS and JOHN W. MCCLARTY, JJ., joined.

Henry S. Queener, Nashville, Tennessee, for the appellant, Leslie Johansen.

C. Benton Patton and Britney K. Pope, Nashville, Tennessee, for the appellee, GEICO
Casualty Company.

Herbert H. Slatery, III, Attorney General and Reporter, Andrée S. Blumstein, Solicitor
General, and Lindsay H. Sisco, Assistant Attorney General, for the intervenor-appellee,
the Tennessee Attorney General.
OPINION

Background

In November 2014, Johansen filed a claim against the Estate of Lee Martin
Sharber in the Probate Court for medical bills and personal injury. In May 2015,
Johansen sued Leon Sharber, Personal Representative of the Estate of Lee Martin
Sharber, in the Trial Court. In this latter case, Johansen alleged that she was injured as a
result of negligence in the ATV accident. GEICO, Johansen’s uninsured motorist carrier,
was served and joined as a party. In July 2015, Johansen executed a release of claim in
the Probate Court without GEICO’s consent. The effect of this release of claim is the
central disputed issue on appeal.

In November 2016, GEICO filed a motion for summary judgment. GEICO
asserted that the release of claim served to settle Johansen’s tort claim and extinguished
GEICO’s subrogation rights releasing GEICO from any liability to Johansen under the
insurance policy. In December 2016, Johansen filed a response to GEICO’s motion,
arguing among other things that neither Johansen nor the Personal Representative had
intended to settle the tort claim, and that, in any case, the Probate Court lacked
jurisdiction to dispose of tort claims. Johansen argued also that the summary judgment
standard set forth at Tenn. Code Ann. § 20-16-101, which GEICO had cited, violated the
separation of powers doctrine and was unconstitutional. The Attorney General of
Tennessee intervened to defend the statute. In February 2017, the Trial Court entered an
order granting summary judgment to GEICO. The Trial Court attached its detailed
findings of fact and conclusions of law, which stated in part:

The undisputed facts are as follows. The Plaintiff, Leslie Johansen,
was a passenger in an ATV accident that occurred on July 13, 2014. The
driver of the vehicle, Lee Martin Sharber, was killed in the accident.
Defendant Leon Sharber is the Administrator of the probate estate of Lee
Martin Sharber, pursuant to the Order of the Probate Court of Rutherford
County. Defendant GEICO is the Plaintiff’s uninsured motorist carrier. On
November 5, 2014, the Plaintiff filed a claim against the Estate of Lee
Martin Sharber in the Probate Court, in the amount of $150,000.00. On her
Probate Court claim form, the Plaintiff described the “Items and Nature of
Claims” as “Medical Bills/Personal Injury (Estimate).” On July 15, 2015
(during the pendency of the case at bar), the Plaintiff executed a “Release
and Acknowledgment of Satisfaction of Claim” (hereinafter ‘Release’), and
filed the same with the Probate Court the following day. The complete text
of the Release, set forth under the caption of the Probate Court case, is as
follows:
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The undersigned, Leslie Johansen, acknowledges full and
complete satisfaction of the claim filed against the Estate and
releases the Personal Representative from any further liability
on the claim of $150,000.00 that the undersigned filed against
the Estate.

Both the Plaintiff and the Administrator now insist that they did not intend
the Release to affect the case at bar in any way. GEICO was not involved
with the execution of the Release in any way, did not consent to the
Plaintiff’s execution of the Release, and was not informed of the existence
of the Release until after its execution. After execution of the Release, the
Plaintiff was allowed by Leon Sharber (in his capacity as Executor of the
estate) to retain possession of a semi-truck which the decedent had owned.
The semi-truck was eventually sold, and the Plaintiff received a portion of
the proceeds therefrom.

The Trial Court went on to articulate its rationale for finding in favor of GEICO,
stating as follows:

GEICO argues, persuasively, that the effect of the Release was to
destroy its subrogation rights pursuant to T.C.A. § 56-7-1206 and under its
contract with the Plaintiff. Clearly, the Release was a general release as to
the July 13, 2014 ATV accident. The scope and extent of a release depends
on the intent of the parties as expressed in the instrument. Cross v. Earls,
517 S.W.2d 751, 752 (Tenn. 1974). As quoted above, the instrument in
question herein acknowledged “full and complete satisfaction” of the claim
filed by the Plaintiff in the Probate case, and further released the “Personal
Representative from any further liability on the claim of $150,000.00.” As
also quoted above, the “claim” that was released was for “Medical
Bills/Personal Injury (Estimate)” in the amount of $150,000.00, stemming
from the ATV accident. This broad, all-encompassing language
demonstrates the intent of the parties to the Release that it operate as a
general release as to the ATV accident. See Id. (General release covers all
claims between the parties which are in existence and within their
contemplation). When the Plaintiff relinquished her rights through the
execution of the Release, she also extinguished the rights of GEICO under
its claim for subrogation. See Doss v. Tennessee Farmers Mutual Ins. Co.,
2001 WL 1565883 at *3, No. M2000-01971-COA-R3-CV (Tenn. Ct. App.,
M.S., Dec. 10, 2001).

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As to the Plaintiff’s argument that the Release did not operate to
release any claims against Leon Sharber, insomuch as it released only the
estate, such is contradicted by the plain language of the Release itself,
which specifically provides that it “releases the Personal Representative”
from any further liability on the personal injury claim. The Defendant in
the case at bar is “Leon Sharber, Administrator of Estate for Lee Martin
Sharber,” not Leon Sharber individually on his own behalf. The Defendant
herein is, therefore, the same entity -- the personal representative of the
estate -- who was released from liability in the general Release filed with
the Probate Court. Accordingly, the Plaintiff’s assertion that the Release
somehow only operated to release the Estate of Lee Martin Sharber is
simply not correct.
With respect to the Plaintiff’s argument that the Release, having
been prepared under the auspices and caption of the Probate Court case,
could not legally affect the tort ease at bar, such is without merit. Although
the Plaintiff is correct in her assertion that the Probate Court lacks
jurisdiction to dispose of tort claims, the proof of claim that the Plaintiff
filed in the Probate Court did indeed specify that it was intended to
preserve her claim for “Medical Bills/Personal Injury (Estimate).” There
was no challenge to, or ruling regarding the Plaintiff’s claim in Probate
Court, and the claim was ultimately settled pursuant to the Release. The
Probate Court’s lack of jurisdiction over tort claims is inapposite; the claim
was raised, negotiated, and settled. Further, the undisputed proof shows,
that the parties acted in reliance on the Release when Leon Sharber
transferred ownership of the semi-truck to the Plaintiff, and the Plaintiff
subsequently sold the truck and received funds from the sale. These facts
support the Plaintiff’s clear intent to settle her tort claim. The Release is
valid, notwithstanding the Probate Court’s lack of tort jurisdiction.
The Plaintiff further argues that GEICO was not an intended
beneficiary to the contract (the Release), and therefore cannot enforce the
Release. This argument is misplaced, because as the uninsured motorist
carrier, GEICO “stands in the shoes” of the owner or operator of the
uninsured vehicle involved in the accident. See T.C.A. § 56-7-1206(a).
Accordingly, by operation of law, GEICO can indeed enforce the Release,
regardless of whether it was an intended beneficiary of the contract.
Finally, the Plaintiff asserts that there was no meeting of the minds
as to the release, and that such was not intended to impact the instant
litigation. In support of this assertion, the Plaintiff relies upon the affidavits
of herself and Leon Sharber, both of which state that they did not intend to
affect the case at bar when they executed the Release. However, when the
plain meaning of a contract can be ascertained from the language within the
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four corners of the document, the parol evidence rule prevents the Court
from considering other contradictory evidence regarding the parties’
intentions. See Farmers & Merchants Bank v. Petty, 664 S.W.2d 77, 82
(Tenn. App. 1983), perm. app. denied 12/19/83.

Conclusion

Since GEICO has affirmatively negated an essential element (i.e.,
liability) of the Plaintiff’s claim against it, summary judgment is
appropriate, and GEICO’s motion must be granted. Mr. Patton will kindly
prepare an Order consistent with this ruling. This letter will become part of
the record in this cause.

The Trial Court also entered an order dismissing Johansen’s constitutional
challenge to Tenn. Code Ann. § 20-16-101, stating:

This cause came before the Court on the 8th day of February 2017,
pursuant to Rule 24 of the TENNESSEE RULES OF CIVIL
PROCEDURE, following notice to the Attorney General that a challenge,
under the Tennessee constitution to the constitutionality of Tenn. Code
Ann. § 20-16-101 had been raised in Plaintiff’s RESPONSE to Defendant
Geico Casualty Company’s MOTION FOR SUMMARY JUDGMENT.
The Attorney General has intervened to defend the constitutionality of
Tenn. Code Ann. § 20-16-101; and following briefing and argument in
open Court, the Court finds as follows:
The Tennessee Supreme Court’s decision in Rye v. Women’s Care
Ctr. of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015) sets forth the
standard courts must apply in deciding a motion for summary judgment and
renders the question of whether Tenn. Code Ann. § 20-16-101 is
constitutional moot.
It is therefore ordered that the challenge to the constitutionality of
Tenn. Code Ann. § 20-16-101 raised in Plaintiff’s RESPONSE to
Defendant Geico’s MOTION FOR SUMMARY JUDGMENT is denied
and dismissed. All other matters are reserved for further orders of this
court.

In April 2017, the Trial Court entered its “Order Entering Final Judgment,” stating
in part: “[T]he Order entered granting GEICO Casualty Company’s Motion for Summary
Judgment, originally entered on February 28, 2017 will now become a Final Order as to

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GEICO Casualty Company, pursuant to Rule 54.02, as of the date of the entry of this
Order. All other matters are reserved.” Johansen timely appealed to this Court.1

Discussion

Although not stated exactly as such, Johansen raises the following issues on
appeal: 1) whether the Trial Court erred in dismissing Johansen’s constitutional challenge
to Tenn. Code Ann. § 20-16-101, the summary judgment standard enacted by the General
Assembly; and, 2) whether the Trial Court erred in granting GEICO’s motion for
summary judgment.

We first address whether the Trial Court erred in dismissing Johansen’s
constitutional challenge to Tenn. Code Ann. § 20-16-101, the summary judgment
standard enacted by the General Assembly. According to Johansen, the statute violates
the separation of powers doctrine. Tenn. Code Ann. § 20-16-101 (Supp. 2017) provides:

In motions for summary judgment in any civil action in Tennessee, the
moving party who does not bear the burden of proof at trial shall prevail on
its motion for summary judgment if it:

(1) Submits affirmative evidence that negates an essential element of the
nonmoving party’s claim; or

(2) Demonstrates to the court that the nonmoving party’s evidence is
insufficient to establish an essential element of the nonmoving party’s
claim.

The Attorney General correctly points out that the Trial Court did not rely on
Tenn. Code Ann. § 20-16-101 in reaching its decision in this case. As reflected in the
Trial Court’s orders quoted above, the Trial Court applied the Rye standard for summary
judgment established by our Supreme Court, not the summary judgment standard set out
in Tenn. Code Ann. § 20-16-101. Therefore, Johansen’s constitutional challenge entirely
is moot, and need not be considered on its merits. We affirm the Trial Court in its
dismissal of Johansen’s constitutional challenge to Tenn. Code Ann. § 20-16-101.

The next and final issue we address is whether the Trial Court erred in granting
GEICO’s motion for summary judgment. As our Supreme Court has instructed regarding
appellate review of a trial court’s ruling on a motion for summary judgment:

1
Leon Sharber is not a party to this appeal.
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Summary judgment is appropriate when “the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of law.”
Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on a motion for
summary judgment de novo, without a presumption of correctness. Bain v.
Wells, 936 S.W.2d 618, 622 (Tenn. 1997); see also Abshure v. Methodist
Healthcare–Memphis Hosp., 325 S.W.3d 98, 103 (Tenn. 2010). In doing
so, we make a fresh determination of whether the requirements of Rule 56
of the Tennessee Rules of Civil Procedure have been satisfied. Estate of
Brown, 402 S.W.3d 193, 198 (Tenn. 2013) (citing Hughes v. New Life Dev.
Corp., 387 S.W.3d 453, 471 (Tenn. 2012)).

***

[I]n Tennessee, as in the federal system, when 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. 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. at 586, 106 S.
Ct. 1348. 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
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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 v. Women’s Care Cntr. of Memphis, MPLLC, 477 S.W.3d 235, 250, 264-65 (Tenn.
2015).

Johansen argues that, despite its plain and unambiguous language, the release of
claim did not settle her tort claim. In support of her position, Johansen makes the
following arguments: (1) The defendant in this matter is Leon Sharber rather than the
Estate of Lee Martin Sharber; (2) any “claim” filed by Johansen in the Estate of Lee
Martin Sharber cannot be a tort claim and therefore the “release of claim” cannot release
any such tort claim; and (3) neither Johansen nor the personal representative ever
intended to settle the tort claim.

Before addressing Johansen’s points, we look to the case law regarding releases
and the role of intent. In the Peatross case, this Court discussed as follows:

A release is a contract and the rules of construction applied to
contracts are used in construing a release. Richland Country Club, Inc. v.
CRC Equities, Inc., 832 S.W.2d 554, 557 (Tenn. Ct. App. 1991). Generally
speaking, the scope and extent of release depends on the intent of the
parties as expressed in the instrument. A general release covers all claims
between the parties which are in existence and within their contemplation; a
release confined to particular matters or causes operates to release only
such claims as fairly come within the terms of the release. Cross v. Earls,
517 S.W.2d 751, 752 (Tenn. 1974). In Evans v. Tillett Bros. Constr. Co.,
Inc., 545 S.W.2d 8 (Tenn. Ct. App. 1976), the Court explained how the
scope of a release should be determined:

The scope of a release is determined by the intention of the
parties as expressed in the terms of the particular instrument,
considered in the light of all the facts and circumstances. The
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intention of the parties is to be gathered from the entire
instrument and in such inquiry that construction will be
adopted which gives effect to each and every part of the
instrument where that is possible. In interpreting a release to
determine whether a particular claim has been discharged, the
primary rule of construction is that the intention of the parties
shall govern and this intention is to be determined with a
consideration of what was within the contemplation of the
parties when the release was executed, which in turn is to be
resolved in the light of all of the surrounding facts and
circumstances under which the parties acted.

Id. at 11; see also, Richland, 832 S.W.2d at 557; Jackson v. Miller, 776
S.W.2d 115, 118 (Tenn. Ct. App. 1989). Subsequent decisions have further
explained that “[a] release ordinarily covers all such matters as may fairly
be said to have been within the contemplation of the parties when it was
given.... Consequently a demand of which a party was ignorant when the
release was given is not as a rule ... embraced therein....” Jackson, 776
S.W.2d at 118 (quoting 76 C.J.S. Release § 52 (1952)).

In Evans, plaintiff signed an agreement releasing one tortfeasor from
liability “and all other persons, firms or corporation liable or who might be
claimed to be liable.” Evans, 545 S.W.2d at 10. The defendants filed a
motion for summary judgment asserting that the settlement agreement
released them from liability as well. In response, plaintiff filed an affidavit
indicating that he had been told that the agreement would only release the
defendant driver and that he relied upon this representation when signing
the agreement. Id. On review, the Court found “that the affidavits
submitted in support of the motion created a material issue of fact with
regard to the intention of the parties in releasing an unnamed tortfeasor....”
Id. at 12. Consequently, the Court concluded that summary judgment was
inappropriate. Id.

The Court, in Louis Dreyfus Corp. v. Austin Co., 868 S.W.2d 649
(Tenn. Ct. App. 1993), applied the “intent” approach set forth in Evans.
The Court first examined the language of the release and then considered
the agreement’s terms in light of the surrounding facts and circumstances.
After considering both the terms of the agreement and the extrinsic
evidence explaining those terms, the Court found that summary judgment
was appropriate because “a jury could only conclude that the parties
intended to release the claims now asserted by [plaintiff].” Id. at 656.
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In Richland, defendants moved for summary judgment on the basis
of a release included in an agreement with plaintiff. Richland, 832 S.W.2d
at 557. Plaintiff presented two affidavits to show the intention of the
parties when they signed the release agreement. In granting summary
judgment, the trial court found that the agreement was unambiguous and
therefore did not consider plaintiff’s affidavits. On appeal, the Court
recited the rules on the construction of a release agreement and found that
the trial court erred: “[t]hus, it appears that the circumstances surrounding
the execution of the documents in this case, the situation of the parties, the
business to which the agreements related ... and the subject matter of the
agreements in general should have been considered in construing the effect
of the release.” Id. at 557. Considering this new information, the Court
found that summary judgment was inappropriate because “a trier of fact
could draw different inferences about the parties’ intent.” Id. at 557.

Peatross v. Shelby County, No. W2008-02385-COA-R3-CV, 2009 WL 2922797, at *2-3
(Tenn. Ct. App. Sept. 10, 2009), no appl. perm. appeal filed.

In the present case, the language of the release is unambiguous. Johansen not only
acknowledged complete and full satisfaction of the claim for medical bills and personal
injury filed against the Estate, she released the Personal Representative from any further
liability on the claim of $150,000. Johansen never has explained fully exactly what the
parties were intending to do if not resolve the tort claim. It appears, rather, that Johansen
simply now regrets having signed the release. In light of the release’s unambiguous
language and the lack of surrounding circumstances that would serve to invalidate the
agreement, we see no justification for exploring further the parties’ intent.

We also are unpersuaded by Johansen’s argument concerning the identity of the
defendant. The release of claim specifically released both the Personal Representative as
well as the Estate. In addition, even if Johansen prevailed in her tort action, she would
recover from the Estate of Lee Martin Sharber, not Leon Sharber, individually.

Finally, Johansen states correctly that the Probate Court could not dispose of a tort
claim. However, that is not exactly what happened here. The Probate Court simply
accepted the filing of the release of claim regarding the tort action. The Probate Court
did not attempt to adjudicate the tort claim itself. Johansen and the Personal
Representative settled the tort claim by contractual agreement.

There being no genuine issues of material fact in this case, and with GEICO
having made a properly supported motion for summary judgment, we find no error in the
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Trial Court’s granting summary judgment to GEICO. We, therefore, affirm the judgment
of the Trial Court.

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
Appellant, Leslie Johansen, and her surety, if any.

____________________________________
D. MICHAEL SWINEY, CHIEF JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4244533. Public record. Not legal advice.