William Dale Alsup v. David C. Alsup
W2016-00925-COA-R3-CV
| Tenn. Ct. App. | May 23, 2017Background
- Decedent (Helen Alsup) died testate in 2005 leaving a holographic will (dated Nov. 13, 2002) dividing a single Henry County parcel into two tracts: 150 ft frontage to William and 262 ft frontage to David (total ~412 ft).
- Probate court admitted the holographic will for muniment of title in 2011; neither party appealed the probate order.
- In January 2015 William procured a survey dividing the property into a 0.840-acre tract (150-ft frontage with house, barn, shed) for William and a 0.662-acre tract (262-ft frontage, no improvements) for David.
- William filed a declaratory judgment/quiet title/ejectment action asking the chancery court to adopt his survey and vest title accordingly.
- David answered pro se denying the survey, alleged an August 18, 2012 agreement and filed a notice of claim of rights, but did not plead a breach-of-contract counterclaim, did not attach the written agreement to his answer, and produced no alternative survey.
- Trial court granted William’s motion for summary judgment, quieted title to the 0.840-acre tract in William, issued a writ of possession, and David appealed.
Issues
| Issue | Plaintiff's Argument (William) | Defendant's Argument (David) | Held |
|---|---|---|---|
| Whether the trial court erred in granting summary judgment and adopting William’s survey to divide the property per the will | William: probate court validated the holographic will and his survey accurately implements the will’s division; summary judgment appropriate | David: contends an August 18, 2012 agreement/contract and claims rights to the parcel with improvements; asserts William’s survey is incorrect | Court: Affirmed. Probate order stands; survey conforms to the will; David failed to plead a contract claim, attach the written instrument timely, or present an alternative survey, so no genuine fact issue remained |
Key Cases Cited
- Rye v. Women's Care Center of Memphis, MPLLC, 477 S.W.3d 235 (Tenn. 2015) (standard of review for summary judgment and de novo appellate review)
- Bain v. Wells, 936 S.W.2d 618 (Tenn. 1997) (summary judgment review principles)
- Estate of Brown, 402 S.W.3d 193 (Tenn. 2013) (procedural guidance on Rule 56 standards)
- Hessmer v. Hessmer, 138 S.W.3d 901 (Tenn. Ct. App. 2003) (pro se litigants held to same procedural and substantive standards)
- Rampy v. ICI Acrylics, Inc., 898 S.W.2d 196 (Tenn. Ct. App. 1994) (court will not create a claim where none exists)
- Taylor v. Beard, 104 S.W.3d 507 (Tenn. 2003) (issues not raised in trial court are waived on appeal)