IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
November 7, 2011 Session
TODD MARSH, ET AL. v. LARRY A. STORIE, ET AL.
Appeal from the Circuit Court for Blount County
No. E-21943 Jon Kerry Blackwood, Senior Judge
No. E2011-00101-COA-R3-CV-FILED-JANUARY 26, 2012
Todd Marsh and Kari Marsh (“Plaintiffs”) sued Larry A. Storie (“Storie”) and First
Tennessee Bank National Association (“First TN Bank”) with regard to, among other things,
ownership of real property which had been the subject of both a tax sale and a foreclosure
sale. After a hearing, the Trial Court entered an order on January 4, 2011 granting partial
summary judgment dismissing First TN Bank from the case, and certifying the judgment as
final as to First TN Bank pursuant to Tenn. R. Civ. P. 54.02. Plaintiffs appeal the dismissal
of their claims against First TN Bank. We affirm.
Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Circuit 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 C HARLES D. S USANO, J R., J., joined.
J. Myers Morton, and George W. Morton, Jr., Knoxville, Tennessee, for the appellants, Todd
Marsh and Kari Marsh.
Gordon D. Foster, Knoxville, Tennessee, for the appellee, First Tennessee Bank National
Association.
OPINION
Background
The real property at issue in this suit bears a street address of 1215 Locust,
Alcoa, Tennessee (“the Property”). In August of 1964, James E. Cupp and Helen M. Cupp
took title to the Property by Warranty Deed. In August of 2001, Helen M. Cupp, by then a
widow, executed a deed of trust in favor of First TN Bank securing a loan of approximately
$36,000 with the Property.
At some time before February of 2004, the Property’s Blount County and Alcoa
City property taxes became delinquent. On March 17, 2004 the Property was sold at a tax
sale by the Clerk & Master to Storie for $6,500. The Blount County Chancery Court entered
an Order confirming sale on April 7, 2004, but Storie did not receive the Clerk & Master’s
Deed for the property until April 8, 2005.
In October of 2004, First TN Bank foreclosed on their Deed of Trust on the
Property. At the October foreclosure sale, Ben Jackson was the high bidder. Mr. Jackson,
however, did not complete the purchase. In November of 2004 Plaintiffs contacted First TN
Bank and offered $26,000 for the Property. First TN Bank accepted Plaintiffs’ offer.
Prior to purchasing the Property, Plaintiffs obtained a title commitment (“Title
Commitment”) from National Title Insurance Co. dated December 27, 2004. The Title
Commitment revealed the nonpayment of the 2002-2003 Alcoa City taxes and the 2003
Blount County taxes on the Property. First TN Bank informed Plaintiffs that they would be
responsible for the taxes. Plaintiffs later contacted the City of Alcoa and Blount County and
were informed that the taxes had been paid. Plaintiffs took no further action or investigation
with regard to these taxes.
In January of 2005, Plaintiffs paid First TN Bank $26,000 and received a
Successor Trustee’s Deed for the Property, which provides, in pertinent part:
WHEREAS, default has been made in the payment of the total amount
due and payable as provided in the above-described Note, which total amount
was past due at the time the foreclosure of said Tennessee Deed of Trust was
begun, and the owner and/or holder of said Note directed the party of the first
part to foreclose said Tennessee Deed of Trust in accordance with the terms
and provisions thereof and to sell the real estate above described; and ….
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***
WHEREAS, on the 21st day of October, 2004, at the hour of 11:00
o’clock a.m. local time, at the Blount County Courthouse in Maryvlle [sic],
Tennessee, the time and place fixed in the advertised Notice of Sale, the
foregoing described real estate was offered for sale at public auction FOR
CASH to the last, highest and best bidder free from all equitable rights of
redemption, statutory right of redemption, homestead, dower, marital share and
all other exemptions and redemptive rights of every kind, the same having
been waived by the terms of said Tennessee Deed of Trust, and being cried for
a reasonable time, was finally sold to the party(ies) of the second part, at a bid
of $26,000.00, party(ies) of the second part being the highest and best
bidder(s), which purchase price was paid to party of the first part and then
applied by party of the first part as directed and provided in said Tennessee
Deed of Trust; ….
***
Party of the first part as Successor Trustee, does hereby transfer, assign,
and set over unto the party(ies) of the second part, his (their) heirs, executors,
administrators, representatives, successors and assigns, all of the covenants
and warranties contained in the aforesaid Tennessee Deed of Trust, and does
hereby warrant the title to the aforesaid real estate as fully and completely as
he is authorized to do as such Successor Trustee, but no further or otherwise;
provided, however, this conveyance is SUBJECT TO any rights of redemption
held by federal or state governmental authorities (if noted herein), priority tax
liens, prior encumbrances, objections, conditions, restrictions, and any current
or delinquent ad valorem property taxes which may be recorded or applicable
to said property, including any applicable personal property, business, or other
local taxes.…
Plaintiffs recorded the Successor Trustee’s Deed on March 15, 2005.
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The statutory one year redemption period1 ended April 8, 20052 . Storie did not
receive the Clerk & Master’s Deed for the Property from the Clerk & Master of the Chancery
Court at Maryville for Blount County until April 8, 2005. Storie recorded the Clerk &
Master’s Deed on July 11, 2005.
In July of 2007, Plaintiffs sued First TN Bank and Storie seeking, among other
things, a declaratory judgment as to the ownership of the Property, damages for
improvements Plaintiffs alleged they made to the Property, and damages under the Tennessee
Consumer Protection Act. After a hearing on Plaintiffs’ motion for partial summary
judgment and First TN Bank’s restated motion for summary judgment, the Trial Court
entered its order on January 4, 2011 granting summary judgment to First TN Bank and
dismissing Plaintiffs’ claims against First TN Bank. The Trial Court certified its January 4,
2011 order as final as to First TN Bank pursuant to Tenn. R. Civ. P. 54.02. Plaintiffs appeal
the dismissal of their claims against First TN Bank.3
Discussion
Although not stated exactly as such, Plaintiffs raise one issue on appeal,
whether the Trial Court erred in granting summary judgment to First TN Bank.
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).
1
“Persons entitled to redeem property may do so by paying the moneys to the clerk as required by
§ 67-5-2703 within one (1) year from the date of the order of confirmation of sale, ….” Tenn. Code Ann.
§ 67-5-2702 (a) (2011)
2
The Trial Court inadvertently stated that the one year redemption period ended one year after the
date of the tax sale, which would have been March 18, 2005. In actuality, the statutory one year redemption
period does not begin to run on the date of the sale, but rather “from the date of the order of confirmation
of sale, ….” Tenn. Code Ann. § 67-5-2702 (a) (2011). This inadvertent misstatement is immaterial to the
analysis of the issue before this Court.
3
Plaintiffs’ claims against Storie still are pending in the Trial Court.
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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
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).
A careful and thorough review of the record on appeal reveals that Plaintiffs’
claims against First TN Bank rest upon Plaintiffs’ assertion that because the Property had
been sold at the tax sale prior to First TN Bank’s foreclosure, First TN Bank had no interest
in the Property which could be sold. This Court dealt with a similar issue when it addressed
the issue of whether the appellee in State v. Delinquent Taxpayers qualified as a “person
entitled to redeem property” under Tenn. Code Ann. § 67-5-2701. State v. Delinquent
Taxpayers, No. M2002-00718-COA-R3-CV, 2003 Tenn. App. LEXIS 363, at *4 (Tenn. Ct.
App. May 20, 2003), appl. perm. appeal denied Aug. 13, 2003. In pertinent part, Tenn. Code
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Ann. § 67-5-2701 provides: “For purposes of this part, ‘person entitled to redeem property’
includes any person who owns a legal or equitable interest in the property sold at the tax sale
and creditors of the taxpayer having a lien on the property; ….” Tenn. Code Ann. § 67-5-
2701 (a) (2011).
In State v. Delinquent Taxpayers, this Court explained:
In Tennessee it is well settled that “the right of a party, whose land has
been sold by judicial sale, to redeem that land has always been treated as an
estate or interest in land which he might sell, or which would descend to his
heirs.” Herndon v. Pickard, 73 Tenn. 702, 704 (Tenn. 1880) (emphasis added)
(citations omitted).
Id. at *7. The State v. Delinquent Taxpayers opinion also addressed the question of whether
the right of redemption could be conveyed after a tax sale had occurred stating:
Appellant argues that in order to convey the right of redemption, if such right
is capable of being conveyed, the conveyance must take place prior to the sale
of the property. This is clearly not the case, as the statutory right of
redemption does not arise until the property has been sold. “The right … of
redemption from a tax sale is granted to … the former owner of the forfeited
land …” 72 Am. Jur. 2d State and Local Taxation § 909 (2002). This fact, that
the right is granted to the former owner, makes it clear that the right does not
exist prior to the sale of the property.
Id. at *6 n.4 (emphasis in original).
In the case now before us on appeal, First TN Bank held an interest in the
Property by virtue of its Deed of Trust, and could through foreclosure sell its interest in the
Property, even though a tax sale already had occurred. As the tax sale already had occurred,
the interest First TN Bank actually was selling in its foreclosure was its right of redemption.
Thus, First TN Bank did not misrepresent to Plaintiffs that it held a saleable interest in the
Property. The Successor Trustee’s Deed to Plaintiffs clearly, plainly, and unambiguously
states that the sale to Plaintiffs was one in foreclosure of the Deed of Trust held by First TN
Bank and that the sale was subject to:
any rights of redemption held by federal or state governmental authorities (if
noted herein), priority tax liens, prior encumbrances, objections, conditions,
restrictions, and any current or delinquent ad valorem property taxes which
may be recorded or applicable to said property, including any applicable
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personal property, business, or other local taxes.…
Plaintiffs attempt to obfuscate the issue by arguing on appeal that they are not
attorneys and, therefore, did not understand the language contained in the Successor
Trustee’s Deed or the significance of the fact that despite being told prior to the foreclosure
sale that the property taxes had not been paid, they later discovered that those taxes had been
paid. Unfortunately for Plaintiffs, neither their lack of understanding of the Successor
Trustee’s Deed, nor their decision not to investigate further how the taxes had come to be
paid is a defense.
Plaintiffs also make much of the fact that First TN Bank did not exercise its
right of redemption before foreclosing upon its Deed of Trust. First TN Bank, however, was
not required to exercise its right of redemption, but was free to sell it to another, as already
discussed. Plaintiffs’ arguments based upon First TN Bank’s decision to sell its right of
redemption rather than exercise it are without merit.
We note, although it is immaterial to the analysis in this case, that Plaintiffs had
notice that the taxes, which had not been paid, suddenly were paid after the Property was in
foreclosure. Plaintiffs chose not to investigate any further.
The resolution of the issue in this case is clear. First TN Bank had a saleable
interest in the Property, the right under Tenn. Code Ann. § 67-5-2701 to redeem the property,
and the Successor Trustee’s Deed clearly and unambiguously stated that the sale was made
in foreclosure and subject to “priority tax liens, prior encumbrances, objections, conditions,
restrictions, and any current or delinquent ad valorem property taxes which may be recorded
or applicable to said property, including any applicable personal property, business, or other
local taxes.…” There are no genuine issues of material fact and, given that First TN Bank
had a saleable interest in the Property, First TN Bank is entitled to judgment as a matter of
law. We affirm the Trial Court’s grant of summary judgment to First TN Bank.
Conclusion
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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, Todd Marsh and Kari Marsh, and their surety.
_________________________________
D. MICHAEL SWINEY, JUDGE
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