Deborah D. Bartley v. Tiny Nunley, Individually And As Administratrix Of The Estate Of Anthony Gene Nunley

08/28/2020
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
June 9, 2020 Session

DEBORAH D. BARTLEY ET AL. v. TINY NUNLEY, INDIVIDUALLY AND AS
ADMINISTRATRIX OF THE ESTATE OF ANTHONY GENE NUNLEY

Appeal from the Chancery Court for Carter County
No. 29844 John C. Rambo, Chancellor

No. E2019-01694-COA-R3-CV

This appeal arose from a dispute between relatives concerning the ownership of improved
real property. The property at issue was conveyed in 2000 via warranty deed to a married
couple, William and Jewel Nunley, and their adult son, Anthony Gene Nunley, each as
tenants in common. Following William Nunley’s death in 2007, Anthony Nunley
purchased his mother’s interest in the property, executing a promissory note in the
amount of $112,509.00 and a deed of trust secured by title to the property.1 In 2015,
Jewel Nunley and Anthony Nunley executed a document stating that the remaining
balance on the note was $37,509.00. Anthony Nunley (“Decedent”) died intestate in June
2016. Decedent’s surviving spouse, Tiny Nunley, filed a petition in the probate division
of the Carter County Chancery Court (“probate court”) and was granted letters of
administration to act as the personal representative (“Personal Representative”) of
Decedent’s estate (“the Estate”). Jewel Nunley filed a claim against the Estate for the
balance owed on the promissory note, which was later settled and released by agreement.
Personal Representative filed an action in the probate court to reform the deed and quiet
title to the subject real property. Two of Decedent’s three adult sisters objected and filed
an action in the Carter County Chancery Court (“trial court”) to partition the property.
The probate court transferred the reformation action to the trial court, treating Personal
Representative’s petition to reform the deed and quiet title as a compulsory counterclaim
to the partition action. The plaintiffs asserted that via the 2000 deed, the property was
conveyed in part to William Nunley as a tenant in common with his one-third interest in
the property then passing to his wife, Jewel Nunley, and their four children, including
Decedent, through intestate succession. Personal Representative contended that the use
of the phrase, “tenants in common,” in the 2000 deed had constituted a mutual mistake
and that the parties had intended for William and Jewel Nunley to own one-half of the
property as tenants by the entirety and for Decedent to own the other half as a tenant in

1
Because several of the individuals involved in this lawsuit share a surname, we will at times refer to
individuals by their first and last names for ease of reference and clarity. No disrespect is intended.
common. Averring that her position was supported by evidence of an oral agreement
between Decedent and his parents, Personal Representative maintained that upon transfer
of Jewel Nunley’s interest to Decedent, he became the sole owner of the property. The
plaintiffs moved for a judgment on the pleadings and filed a motion in limine, requesting
that the trial court exclude any testimony or parol evidence related to alleged oral
agreements among the parties to the 2000 deed. Following a hearing, the trial court
granted the plaintiffs’ motion in limine, finding that the deed was unambiguous and that
admission of additional evidence of Decedent’s intent would violate the parol evidence
rule, the Dead Man’s Statute, and the Statute of Frauds. Accordingly, the trial court
granted the plaintiffs’ motion for judgment on the pleadings, finding that the deed
conveyed title to the property at issue to Decedent and each of his parents as tenants in
common and that William Nunley’s one-third interest had transferred to his wife and
children upon his death. Upon Personal Representative’s motion, the trial court certified
the judgment as final pursuant to Tennessee Rule of Civil Procedure 54.02. Personal
Representative has appealed. Discerning no reversible error, we affirm.

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

THOMAS R. FRIERSON, II, J., delivered the opinion of the court, in which D. MICHAEL
SWINEY, C.J., and JOHN W. MCCLARTY, J., joined.

Mark S. Dessauer and Matthew F. Bettis, Kingsport, Tennessee, for the appellant, Tiny
Nunley, individually and as Administratrix of the Estate of Anthony Gene Nunley.

Brett A. Cole, Johnson City, Tennessee, for the appellees, Deborah D. Bartley and
Delilah J. Nunley.

OPINION

I. Factual and Procedural Background

Following Decedent’s death in June 2016, Personal Representative filed her
petition for letters of administration in the probate court on July 1, 2016, averring, inter
alia, that Decedent had died intestate and that he had been the sole proprietor of The
Chair Factory, a furniture store located in Elizabethton, Tennessee. The subject real
property is described in the relevant deeds as “Lots 3 and 4 of Barfield Subdivision,”
located in Elizabethton (“the Property”). The Property had served as a warehouse for
Decedent’s furniture business prior to his death. The probate court entered an order
appointing Personal Representative and also finding her to be the sole beneficiary of the
Estate in accordance with her petition.
2
 The warranty deed primarily at issue was executed on August 22, 2000 (“the 2000
Deed”) and operated to convey fee simple title in the Property from East Tennessee Chair
Company, Inc., to William Nunley, Jewel Nunley and Decedent. The conveyance
language at issue in the 2000 Deed stated:

THIS INDENTURE made and entered into on this the 22nd day of
August, 2000, between EAST TENNESSEE CHAIR COMPANY, INC.,
party of the first part, and WILLIAM NUNLEY, JEWEL NUNLEY and
ANTHONY NUNLEY, as tenants in common, parties of the second part.

The 2000 Deed was duly recorded by the Carter County Register of Deeds.

As the trial court found in its final judgment, it is undisputed that at the time of the
2000 Deed’s execution, William and Jewel Nunley had “pledged their personal residence
as collateral to borrow the funds to purchase the [P]roperty for $260,000.” However, as
the trial court also found, “[t]here is a dispute as to whether there was an agreement
between [William and Jewel] Nunley and [Decedent] that [Decedent] would pay this debt
and would then fully own the property.”

On September 15, 2016, Jewel Nunley filed a verified claim against the Estate,
alleging that at the time of his death, Decedent had owed a remaining balance of
$46,705.59 due on a promissory note (“the Note”) secured by a deed of trust (“the Deed
of Trust”) encumbering the Property. She attached a copy of the Deed of Trust, which
had been executed on May 23, 2013, by Decedent, conveying the Property to attorney
T.J. Little, Jr., as trustee and to his successor in trust. The Deed of Trust also stated that
title to the Property had been conveyed via quitclaim deed (“2013 Quitclaim Deed”) on
the same date from Jewel Nunley to Decedent. The 2013 Quitclaim Deed and the Deed
of Trust had been duly recorded. Personal Representative initially filed an exception to
the claim, and Jewel Nunley filed an amended claim with a revised balance in the amount
of $40,974.34.

On April 21, 2017, Personal Representative filed in the trial court a complaint to
reform the 2000 Deed and quiet title to the Property. Personal Representative requested
that “[t]he Deed be reformed to show the intention of the parties and the Court declare
[Decedent] the sole owner of the Warehouse property.” She also requested that the trial
court quiet title in the name of Decedent and that “[a]ll children of William Nunley be
made parties to this lawsuit.” Personal Representative averred that Decedent and his
parents had entered into the 2000 Deed as grantees with the understanding that Decedent
would pay off the mortgage encumbering the parents’ residence and that Decedent would
become the sole owner of the Property once he had paid his parents’ indebtedness in full.
3
 Personal Representative attached to her reformation complaint copies of the 2000
Deed; the 2013 Quitclaim Deed; the Deed of Trust; the Note, setting forth Decedent’s
promise to pay $112,509.00 secured by the Deed of Trust; an August 2015 “Agreed
Receipt and Balance on Deed of Trust,” reflecting a remaining balance due under the
Note, agreed to by Jewel Nunley and Decedent, in the amount of $37,509.00 (“2015
Agreement”); and a “Contract to Purchase Real Estate” concerning the Property
(“Contract to Purchase”), which had been executed on May 23, 2013, between Jewel
Nunley as the seller and Decedent as the buyer. The terms of the Contract to Purchase
provide in pertinent part:

1. The agreed purchase price for said real property shall be of the
payment in full of indebtedness owed on Loan Number 01-06-
026589, to Security Federal Savings Bank, in the approximate
amount of $116,000.00, secured by Deed of Trust against the
premises of Jewel Nunley. It was and is the understanding between
the parties hereto at the time of the purchase of the above premises
that the SELLER and her late husband would secure a loan against
their home to purchase the premises and that the BUYER would
discharge said indebtedness in full.

2. The said purchase price shall be paid as follows upon receipt of
evidence of payment in full of the note hereinabove referenced,
SELLER will deliver to BUYER a Quitclaim Deed for all her right,
title and interest in and to the property.

***

7. This Agreement shall inure to the benefit of, and shall be binding
upon, the respective parties and their heirs, personal representative,
successors and assigns.

On May 22, 2017, two of Decedent’s sisters, Deborah D. Bartley and Delilah J.
Nunley, filed in the probate court a motion to dismiss Personal Representative’s
reformation action on the basis of (1) lack of subject matter jurisdiction in the probate
court; (2) lack of standing for Personal Representative to file the petition; and (3) failure
to join necessary parties, particularly Jewel Nunley and Snap-On, Inc. (“Snap-On”),
which they averred held a leasehold interest in the Property. On May 23, 2017, Jewel
Nunley filed a release of her claim against the Estate upon having received payment from
the Estate for the balance due on the promissory note. Filing in the trial court, Personal
Representative replied to the motion to dismiss her reformation action on June 26, 2017,
4
asserting that the trial court had subject matter jurisdiction, that Personal Representative
had standing because the Property was part of the Estate, and that neither Jewel Nunley
nor Snap-On was a necessary party because Jewel Nunley had released her claim against
the Estate and Snap-On did not possess a leasehold interest in the Property.

Ms. Bartley and Delilah Nunley (collectively, “Plaintiffs”) filed a complaint for
partition of the Property by sale, pursuant to Tennessee Code Annotated § 29-27-101
(2012 & Supp. 2019) et seq., in the trial court on July 6, 2017. They named as
defendants Tiny Nunley, both individually and as Personal Representative of the Estate;
Diana N. Gorman, Decedent’s third sister; and Snap-On. Plaintiffs averred in their
complaint that the 2000 Deed unambiguously represented a conveyance of a one-third
interest in the Property each to William Nunley, Jewel Nunley, and Decedent as tenants
in common, meaning that, pursuant to Tennessee Code Annotated §§ 31-2-103 and 104
(2015), William Nunley’s one-third share would have vested in his surviving spouse
(Jewel Nunley) and each of their four children upon his death intestate. See Tenn. Code
Ann. § 31-2-104 (providing that the surviving spouse’s share of an intestate estate if there
are also surviving children is “one-third (1/3) or a child’s share of the entire intestate
estate, whichever is greater.”).

Plaintiffs posited in their complaint that given the prior respective ownership
interests of Jewel Nunley and Decedent following William Nunley’s death, the Property
was owned as follows at that time: (1) Jewel Nunley, 8/18 interest; (2) Decedent, 7/18
interest; (3) Ms. Bartley, 1/18 interest; (4) Delilah Nunley, 1/18 interest; and (5) Ms.
Gorman, 1/18 interest. Further positing that the 2013 Quitclaim Deed therefore conveyed
to Decedent solely the 8/18 interest owned by Jewel Nunley at the time of its execution,
Plaintiffs asserted that following that conveyance, the Property was owned as follows:
(1) Decedent, 15/18 interest; (2) Ms. Bartley, 1/18 interest; (3) Delilah Nunley, 1/18
interest; and (4) Ms. Gorman, 1/18 interest. Plaintiffs attached to their complaint copies
of the 2000 Deed; the 2013 Quitclaim Deed; the Contract to Purchase; and a map of a
portion of Carter County referenced as the plat map in the relevant deeds.

In addition to requesting a partition of the Property by sale according to purported
ownership interests, Plaintiffs asserted in their complaint a claim of unjust enrichment
against Personal Representative and the Estate, alleging that Snap-On had been making
lease payments to Decedent for an unspecified period of time with no portion remitted to
Plaintiffs. In her answer to the partition complaint, filed on July 21, 2017, Personal
Representative denied any knowledge of lease payments made by Snap-On and any
unjust enrichment. Upon Plaintiffs’ subsequent motion of voluntary dismissal, the trial
court entered an order dismissing the claims against Snap-On without prejudice on
September 28, 2017. Snap-On is not participating in this appeal.

5
 In her answer, Personal Representative also objected to the legal conclusions
contained in Plaintiffs’ complaint, maintaining her position that Decedent was the sole
owner of the Property at the time of his death. She listed affirmative defenses of the
statute of limitations, accord and satisfaction, estoppel, laches, payment, release, and
waiver. Personal Representative concomitantly filed three motions: one to dismiss the
partition complaint; one to require Plaintiffs to post bond in an amount equal to or double
the amount of the Property pursuant to Tennessee Code Annotated § 29-27-219 (2012);
and one for a stay of the proceedings until her action to reform the deed and quiet title
could be resolved. She also requested attorney’s fees and discretionary costs. Plaintiffs
filed a response objecting to Personal Representative’s motions requesting bond and a
stay.

Personal Representative subsequently filed a memorandum of law in support of
her motion to stay, arguing in part that the trial court had subject matter jurisdiction to
hear both actions because the probate court was a division of the chancery court. As
Personal Representative noted in her memorandum, the same chancellor presided over
both courts. Accordingly, the chancellor conducted a hearing on August 3, 2017, under
the auspices of both the probate court and the trial court. The chancellor subsequently
entered an order on August 24, 2017, transferring Personal Representative’s action to
reform the 2000 Deed and quiet title from the probate court to the trial court upon finding
that the probate court was not the “appropriate forum” in which to consider the matter.2
The trial court directed that Personal Representative’s transferred complaint would be
treated as a compulsory counterclaim to Plaintiffs’ partition complaint. Denying Personal
Representative’s motions to post bond and to stay the partition complaint, the trial court
also directed that it would first adjudicate Personal Representative’s reformation
counterclaim and then proceed to the partition action only if it found that Plaintiffs or
other individuals possessed ownership interests in the Property.

On September 22, 2017, Plaintiffs filed an answer to Personal Representative’s
counterclaim, denying that Decedent was the sole owner of the Property at the time of his
death and denying that the 2000 Deed did not reflect the intent of Decedent and his
parents. Plaintiffs asserted as affirmative defenses (1) lack of ambiguity in the 2000
Deed; (2) no mutual mistake or unilateral mistake coupled with fraud that would allow
for reformation of the 2000 Deed; (3) failure to plead mistake with particularity pursuant
2
We note that pursuant to Tennessee Code Annotated § 16-16-201(a) (Supp. 2019), the chancery court in
Carter County has “exclusive jurisdiction over the probate of wills and the administration of estates of
every nature, including the estates of decedents and of wards under guardianships or conservatorships and
all matters relating thereto . . . .” See generally, In re Estate of Trigg, 368 S.W.3d 483, 494 (Tenn. 2012).
However, as the trial court here determined, probate matters are heard in the probate division of the Carter
County Chancery Court. See, e.g., In re Conservatorship of Hudson, 578 S.W.3d 896, 907 (Tenn. Ct.
App. 2018).

6
to Tennessee Rule of Civil Procedure 9.02; (4) violation of the Statute of Frauds pursuant
to Tennessee Code Annotated § 29-2-101(a)(4)-(5) (2012); (5) violation of the Dead
Man’s Statute, pursuant to Tennessee Code Annotated § 24-1-203 (2017), as barring
introduction of evidence concerning agreements involving William Nunley or Decedent;
(6) waiver through settlement of Jewel Nunley’s claim against the Estate; (7) prejudice
against Plaintiffs due to the passage of time and death of potential witnesses; and (8)
laches.

Upon agreement of the parties, the trial court entered an order on October 19,
2017, joining Tiny Nunley individually as a necessary party when she had previously
been a party solely in her representative capacity (hereinafter collectively, “Personal
Representative”). On November 1, 2018, the trial court entered an order, taking notice
that Personal Representative’s original counsel had died, allowing her counsel’s firm to
withdraw from representation, and giving Personal Representative through the new year
to retain substitute counsel. The trial court subsequently entered an order sua sponte on
January 16, 2019, setting the case for trial and another order on January 25, 2019, finding
that because Personal Representative had not filed notice of new representation, she
would be considered pro se for trial.

On February 6, 2019, Plaintiffs filed a motion for judgment on the pleadings,
pursuant to Tennessee Rule of Civil Procedure 12.03, requesting that Personal
Representative’s counterclaim to reform the deed and quiet title be dismissed. Plaintiffs
also sought a declaration based on the pleadings that via the 2000 Deed, William Nunley,
Jewel Nunley, and Decedent each acquired an undivided one-third ownership interest in
the Property as tenants in common. They requested that the trial court declare that Ms.
Bartley, Delilah Nunley, and Ms. Gorman each held a 1/18 interest in the Property
“pursuant to the interest each inherited from William Nunley upon his death.”

Plaintiffs concomitantly filed their motion in limine, requesting that upon a finding
that the 2000 Deed was unambiguous, the trial court would enter a ruling that “all parol
or extrinsic evidence seeking to construe and interpret the 2000 Warranty Deed and the
title conveyed to the grantees thereby [would be] inadmissible.” They asserted that “all
testimony regarding transactions or statements by and among [Decedent], William
Nunley, and Jewel Nunley” should be found inadmissible pursuant to the Dead Man’s
Statute and that “all testimony and all parol evidence regarding alleged agreements or
understandings by and among William Nunley, Jewel Nunley, and [Decedent]” should be
found inadmissible pursuant to the Statute of Frauds.

Acting through newly retained counsel, Personal Representative filed motions on
February 13, 2019, seeking to continue a hearing that had been set concerning Plaintiffs’
motions and to continue trial. In the meantime, upon agreement of the parties and
7
following a separate hearing, the trial court entered an order on February 20, 2019,
dismissing without prejudice Ms. Gorman as a party to the case. During this hearing, Ms.
Gorman announced through her individual counsel that she had executed and delivered a
quitclaim deed conveying her ownership interest in the Property to Personal
Representative. The trial court subsequently entered an order on February 27, 2019,
granting Personal Representative’s motions for continuance and setting dates for a
hearing on Plaintiffs’ motions and for trial.

Meanwhile, Personal Representative filed a motion to amend her answer to
Plaintiffs’ complaint on February 25, 2019. Relative to the partition action, Personal
Representative sought to add the following affirmative defenses: (1) the statute of
limitations pursuant to Tennessee Code Annotated § 28-3-110 (2017), (2) laches, (3)
waiver, and (4) equitable estoppel. Alternatively, if the trial court were to find that
Plaintiffs possessed legal interests in the Property, Personal Representative sought to
have the trial court declare the value of those interests and determine that payment for
value could be made to Plaintiffs in lieu of selling the Property.

Personal Representative concomitantly filed responses opposing Plaintiffs’ motion
for judgment on the pleadings and Plaintiffs’ motion in limine. In her response opposing
a judgment on the pleadings, Personal Representative postulated that the allegations in
her reformation complaint, “when construed liberally in her favor by taking all factual
allegations as true and giving her the benefit of all the inferences that can be reasonably
drawn from the pleaded facts, state[] a claim for reformation of the Deed.” Personal
Representative alternatively argued that “genuine issues of material fact remain[ed] as to
whether the Deed should be reformed on the grounds of mutual mistake.” She attached
to her response a transcript of a deposition taken from Mr. Little, the attorney who had
been retained by Jewel Nunley in 2013 to prepare the Contract to Purchase and 2013
Quitclaim Deed. Personal Representative also cited excerpts from Mr. Little’s deposition
testimony in her response.

On March 18, 2019, Plaintiffs filed a response to Personal Representative’s motion
to amend, arguing that because the motion to amend was filed nineteen months after the
answer was filed and because the case was set for trial in August 2019, it would be
prejudicial to Plaintiffs to allow Personal Representative to amend her answer to add
affirmative defenses. Plaintiffs simultaneously filed replies to Personal Representative’s
responses to their motions in limine and for judgment on the pleadings, arguing, inter
alia, that the trial court should solely consider the pleadings and that because the
language at issue in the 2000 Deed was purportedly unambiguous, “the only conclusion
that [could] be drawn from the pleadings [was] that the grantees under such Deed
received title to the Warehouse Property as tenants in common . . . .” Following a
hearing, the trial court entered an order on April 3, 2019, granting Personal
8
Representative’s motion to amend her answer to add additional affirmative defenses and
an alternate request for relief and approving an agreement concerning the additional time
for production of documents requested by Plaintiffs.

The trial court subsequently entered its order granting Plaintiffs’ motion for
judgment on the pleadings and dismissing Personal Representative’s counterclaim to
reform the deed on July 17, 2019. In this order, the trial court also determined that “[t]he
statements by and among [Decedent], William [Nunley], and Jewel Nunley are Barred
under the Dead Man’s Statute”; “[u]nder the Statute of Frauds, the agreements and
undertakings, other than 2000 Warranty Deed, are not admissible”; and “[t]he 2000
Warranty Deed is not Subject to Reformation in Light of the 2013 Purchase Contract.”
Noting the parties’ agreement that the “meaning of the language creating the original
tenancy” in the 2000 Deed also controlled the interest of each of the instant parties, the
trial court determined that the 2000 Deed was unambiguous in creating a tenancy in
common among William Nunley, Jewel Nunley, and Decedent. The trial court thereby
declared that at the time of his death, Decedent owned a 5/6, or 15/18, interest in the
Property and that his three sisters—Ms. Bartley, Delilah Nunley, and Ms. Gorman—each
owned an undivided 1/18 interest in the Property.

Upon Personal Representative’s motions, the trial court entered an order on
September 11, 2019, certifying the July 2017 judgment as final, pursuant to Tennessee
Rule of Civil Procedure 54.02, and staying further proceedings in the trial court pending
appeal. Personal Representative timely appealed.

II. Issues Presented

Personal Representative raises three issues on appeal, which we have restated
slightly as follows:

1. Whether the trial court erred by granting Plaintiffs’ motion for
judgment on the pleadings and dismissing Personal Representative’s
counterclaim to reform the deed.

2. Whether the trial court erred by finding that the language of the
conveyance in the 2000 Deed was not ambiguous.

3. Whether the trial court erred by granting Plaintiffs’ motion in limine
based on the Tennessee Statute of Frauds, the parol evidence rule,
and the Tennessee Dead Man’s Statute.

Plaintiffs raise two additional issues, which we have restated as follows:
9
 4. Whether, if this Court determines that the trial court erred in
excluding evidence found inadmissible in response to Plaintiffs’
motion in limine, the 2013 Quitclaim Deed and the 2015 Agreement
should also be admitted.

5. Whether the trial court properly applied the standard for a motion for
judgment on the pleadings and, if not, whether Personal
Representative’s counterclaim should be dismissed under the
summary judgment standard.

III. Standard of Review

This Court has previously explained that “[w]hen reviewing orders granting a
Tenn. R. Civ. P. 12.03 motion [for judgment on the pleadings], we use the same standard
of review we use to review orders granting a Tenn. R. Civ. P. 12.02(6) motion to dismiss
for failure to state a claim.” Young v. Barrow, 130 S.W.3d 59, 63 (Tenn. Ct. App. 2003).
As our Supreme Court has elucidated concerning a Tennessee Rule of Civil Procedure
12.02(6) motion to dismiss:

The sole purpose of a Tennessee Rule of Civil Procedure 12.02(6)
motion to dismiss is to test the sufficiency of the complaint, not the strength
of the plaintiff’s evidence. Doe v. Sundquist, 2 S.W.3d 919, 922 (Tenn.
1999); Riggs v. Burson, 941 S.W.2d 44, 47 (Tenn. 1997). When reviewing
a dismissal of a complaint under Rule 12.02(6), this Court must take the
factual allegations contained in the complaint as true and review the trial
court’s legal conclusions de novo without giving any presumption of
correctness to those conclusions. See, e.g., Doe v. Sundquist, 2 S.W.3d at
922. Because a motion to dismiss a complaint under Rule 12.02(6)
challenges only the legal sufficiency of the complaint, courts should grant a
motion to dismiss only when it appears that the plaintiff can prove no set of
facts in support of the claim that would entitle the plaintiff to relief. See,
e.g., Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 696 (Tenn.
2002).

Willis v. Tenn. Dep’t of Corr., 113 S.W.3d 706, 710 (Tenn. 2003).

IV. Judgment on the Pleadings versus Summary Judgment

Personal Representative contends that when the trial court granted Plaintiffs’
motion in limine, the court “refused to consider any other documents or deposition
10
testimony that were either exhibits to or outside of the pleadings when it granted
Plaintiffs’ motion for summary judgment on the pleadings . . . .” Personal Representative
essentially argues that the trial court failed to properly apply the standard applicable to a
Tennessee Rule of Civil Procedure 12.03 motion for judgment on the pleadings because
the court failed to accept as true all of the allegations in her reformation complaint. See
Young, 130 S.W.3d at 63 (explaining that in reviewing a trial court’s decision on a Rule
12.03 motion for judgment on the pleadings, as in reviewing a Rule 12.02(6) motion to
dismiss, “we must construe the complaint liberally in favor of the non-moving party and
take all the factual allegations in the complaint as true.”). However, Personal
Representative also asserts that because Mr. Little’s deposition testimony, attached to her
response to the motion for judgment on the pleadings, “was not excluded by the trial
court,” Plaintiffs’ motion should be treated as one for summary judgment. In response,
Plaintiffs contend in part that because “Personal Representative has no evidence to prove
a different intent behind the 2000 deed or mutual mistake, either Summary Judgment or a
Judgment on the Pleadings is appropriate.” As a threshold matter and upon careful
review, we determine that the trial court did not consider matters outside the pleadings
and properly declined to convert Plaintiffs’ motion for judgment on the pleadings to one
for summary judgment.

Tennessee Rule of Civil Procedure 12.03 provides:

After the pleadings are closed but within such time as not to delay the trial,
any party may move for judgment on the pleadings. If, on a motion for
judgment on the pleadings, matters outside the pleadings are presented to
and not excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided in Rule 56, and all parties
shall be given reasonable opportunity to present all material made pertinent
to such a motion by Rule 56.

Generally, “[i]f matters outside the pleadings are presented in conjunction with either a
Rule 12.02(6) motion [to dismiss] or a Rule 12.03 motion [for judgment on the pleadings]
and the trial court does not exclude those matters, the court must treat such motions as
motions for summary judgment and dispose of them as provided in Rule 56.” Patton v.
Estate of Upchurch, 242 S.W.3d 781, 786 (Tenn. Ct. App. 2007).

In this case, Personal Representative had initially attached to her reformation
complaint, which upon transfer to the trial court became her counterclaim, copies of the
2000 Deed, the 2013 Quitclaim Deed, the 2013 Deed of Trust, the 2013 Note, the 2013
Contract to Purchase, and the 2015 Agreement. Given that Personal Representative
sought to prove that the 2013 documents and 2015 Agreement demonstrated a different
interpretation of the intent of the parties to the 2000 Deed than the language of the 2000
11
Deed would indicate, Personal Representative properly attached these documents
pursuant to Tennessee Rule of Civil Procedure 10.03, which provides:

Whenever a claim or defense is founded upon a written instrument other
than a policy of insurance, a copy of such instrument or the pertinent parts
thereof shall be attached to the pleading as an exhibit unless the instrument
is (1) a matter of public record in the county in which the action is
commenced and its location in the record is set forth in the pleading; (2) in
the possession of the adverse party and this fact is stated in the pleading; (3)
inaccessible to the pleader or is of such nature that attaching the instrument
would be unnecessary or impracticable and this fact is stated in the
pleading, together with the reason therefor. Every exhibit so attached or
referred to under (1) and (2) shall be a part of the pleading for all purposes.

These documents attached to Personal Representative’s counterclaim thereby became
part of her pleading. See Tenn. R. Civ. P. 10.03.

When Plaintiffs filed their initial motion to dismiss the reformation complaint in
the probate court, they attached solely a copy of the 2013 Deed of Trust, which was
already a part of Personal Representative’s pleading. When Plaintiffs subsequently filed
their partition complaint in the trial court, they attached copies of the 2000 Deed, the
2013 Quitclaim Deed, the 2013 Contract to Purchase, and a plat map of a relevant portion
of Carter County. Although in this consolidated action, Plaintiffs’ partition complaint
was also a pleading, we note that the only exhibit attached by Plaintiffs that had not been
included in Personal Representative’s counterclaim was the plat map, which is a public
record. See W. Express, Inc. v. Brentwood Servs., Inc., No. M2008-02227-COA-R3-CV,
2009 WL 3448747, at *3 (Tenn. Ct. App. Oct. 26, 2009) (delineating exceptions to the
general rule, including “matters incorporated by reference or integral to the claim, items
subject to judicial notice, matters of public record, orders, items appearing in the record
of the case, and exhibits attached to the complaint whose authenticity is unquestioned”
(quoting Ind. State Dist. Council of Laborers v. Brukardt, No. M2007-02271-COA-R3-
CV, 2009 WL 426237, at *8 (Tenn. Ct. App. Feb. 19, 2009))).

Plaintiffs did not attach any documents or other exhibits to their motion for a
judgment on the pleadings. However, Personal Representative attached the transcript of
Mr. Little’s deposition to her response to the motion for judgment on the pleadings, as
well as citing excerpts of the deposition in her response. She also attached the exhibits to
the deposition, all of which had been previously attached to pleadings except for Mr.
Little’s notes. Concerning the potential effect of attaching and referencing Mr. Little’s
deposition, Personal Representative expressly stated the following in her response:

12
 [Personal Representative] has submitted the discovery deposition of T. J.
Little in support of her opposition to the Plaintiffs’ motion. If the
deposition is not excluded by the Court, then Plaintiffs’ motion should be
treated as one for summary judgment. In such event, then consideration of
the motion should be deferred as [Personal Representative] has not had
adequate time for discovery or alternatively denied, as genuine issues of
material fact remain with respect to [Personal Representative’s] claim to
reform the Deed.

We agree that if the trial court had considered Mr. Little’s deposition transcript or
his notes, the effect would have been to convert Plaintiffs’ motion for a judgment on the
pleadings to a motion for summary judgment. See, e.g., Patton, 242 S.W.3d at 787
(“[T]he Plaintiffs and two of the Defendants presented extraneous evidence, and the [trial
court] accepted the extraneous evidence which converted the Rule 12 motion into one for
summary judgment.”). However, we cannot agree with Personal Representative’s
contention that because the trial court did not expressly exclude the deposition transcript
in its judgment, the motion must be converted to one for summary judgment. The trial
court did not mention or reference the deposition transcript whatsoever in its judgment.
Additionally, as Personal Representative acknowledges, the trial court found that
pursuant to the Statute of Frauds, “the agreements and undertakings, other than [the]
2000 Warranty Deed,” would not be admissible in this action, a ruling that clearly
encompassed any testimony that Mr. Little could have offered concerning the
circumstances surrounding the 2013 documents he drafted.

Upon careful consideration of the trial court’s judgment in this action, we
determine that the trial court did not consider Mr. Little’s deposition transcript or his
notes and therefore did not consider matters outside the pleadings. The trial court
properly declined to convert Plaintiffs’ Tennessee Rule of Civil Procedure 12.03 motion
for judgment on the pleadings to a Tennessee Rule of Civil Procedure 56 motion for
summary judgment.

V. The 2000 Deed

In determining that Plaintiffs were each entitled to a 1/18 ownership interest in the
Property, the trial court found the 2000 Deed to be “clear and unambiguous” and not a
candidate for reformation. Personal Representative contends that the trial court erred by
declining to recognize the omission in the 2000 Deed of the marital relationship between
William Nunley and Jewel Nunley as a latent ambiguity. She argues that this latent
ambiguity raises a question concerning whether the intent of the parties to the 2000 Deed
was that each grantee would own a one-third interest in the Property as tenants in
common or that William and Jewel Nunley would own a one-half interest in the Property
13
as tenants by the entirety while Decedent would own the other one-half interest. Personal
Representative further contends that the trial court erred by failing to treat all of her
assertions in the counterclaim as true and by declining to consider evidence beyond the
2000 Deed that the use of “tenants in common” in the conveyance was the result of
mutual mistake in expression by the parties to the 2000 Deed.

Plaintiffs contend that the trial court properly found no latent ambiguity in the
2000 Deed and no relevant factual allegations in Personal Representative’s complaint
that, taken as true, would demonstrate a mutual mistake at the time of the 2000 Deed’s
execution. Upon thorough review of the record and applicable authorities, we conclude
that the trial court did not err in determining that the 2000 Deed unambiguously created a
tenancy in common among the three grantees. Moreover, because even when treating all
of Personal Representative’s factual allegations as true, William Nunley’s intent at the
time of the 2000 Deed’s execution concerning which type of tenancy would be created
cannot be demonstrated and the grantor’s intent remains unknown, we conclude that the
trial court properly determined that the 2000 Deed could not be reformed.

Concerning interpretation of a deed and the standard for reformation of a deed,
this Court has recently explained:

“A deed is a contract.” Richards v. Taylor, 926 S.W.2d 569, 571
(Tenn. Ct. App. 1996). In evaluating a deed, we apply certain established
principles. Id. “The interpretation of a deed is a question of law,” which
we review de novo. See Hughes v. New Life Dev. Corp., 387 S.W.3d 453,
466 (Tenn. 2012) (citations omitted). In interpreting a deed, courts
ascertain the intention of the grantor from the words of the deed as a whole
and from the surrounding circumstances. Id. “Contracts are to be judged
by an objective standard, i.e., what a reasonable onlooker would conclude
the parties intended from the words expressed in the instrument.” See
Richards, 926 S.W.2d at 572 (citation omitted). “It is well settled that a
deed, regular on its face, and properly signed acknowledged, and recorded,
will be reformed only upon the most satisfactory proof that it does not
express the real intention of the parties; that is, what is known as clear,
cogent, and convincing proof, or clear and indisputable proof.” Anderson
v. Howard, 74 S.W.2d 387, 390 (Tenn. Ct. App. 1934).

In re Philip Roseman 2012 Irrevocable Gift Trust, No. M2017-01994-COA-R3-CV, 2018
WL 3217245, at *4 (Tenn. Ct. App. July 2, 2018).

“Tennessee recognizes three basic forms of concurrent ownership in real property:
joint tenancy, tenancy in common, and tenancy by the entirety.” Bryant v. Bryant, 522
14
S.W.3d 392, 399 (Tenn. 2017). Concerning the distinctions among these forms of
concurrent ownership, our Supreme Court has elucidated:

A tenancy by the entirety is held exclusively by persons who are
legally married. It is ancient in origin and remains firmly established in
Tennessee. Griffin [v. Prince], 632 S.W.2d [532,] 535 [(Tenn. 1982),
overruled on other grounds by In re Estate of Fletcher, 538 S.W.3d 444
(Tenn. 2017)]; see Tenn. Code Ann. §§ 36-3-505, 31-1-108. Tenancy by
the entirety is based on the concept that those who are married are not
separate persons; rather, they “are but one person.” Tindell v. Tindell, 37
S.W. 1105, 1106 (Tenn. Ch. App. 1896) (quoting Den v. Hardenbergh, 10
N.J.L. 42, 45 (1828)); see Taul v. Campbell, 15 Tenn. (7 Yer.) 319, 333
(1835) (noting that a husband and wife “take but one estate, as a
corporation would take, being by the common law deemed but one
person”). Consequently, co-tenants in a tenancy by the entirety do not hold
their interest by moieties (by parts), they hold by the entirety: “Each is not
seised of an undivided moiety, but both are . . . seised of the whole. They
are seised, not per my et per tout [by the half and by the whole], but solely
and simply per tout [by the whole].” Tindell, 37 S.W. at 1106 (quoting
Den, 10 N.J.L. at 45).

When property is held in a tenancy by the entirety, upon the death of
one spouse, the survivor continues to own the whole in fee simple.
Technically, then, the surviving spouse does not acquire the fee simple
interest through a right of survivorship; the survivor “enjoys the whole
[after the death of the other spouse], . . . not because any new or further
estate or interest becomes vested, but because of the original conveyance,
and of the same estate and same quantity of estate as at the time the
conveyance was perfected.” Id. (quoting Den, 10 N.J.L. at 45) (explaining
that “[b]etween husband and wife, the jus accrescendi [right of
survivorship] does not exist”); see Cole Mfg. Co. v. Collier, 95 Tenn. 115,
31 S.W. 1000, 1001 (1895); Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695,
698 (1956); Taul, 15 Tenn. (7 Yer.) at 336-37.

At common law, the primary difference between holding in joint
tenancy and tenancy in common is that joint tenancy includes a right of
survivorship between the co-tenants by operation of law, whereas tenancy
in common does not. See Peebles [v. Peebles], 443 S.W.2d [469,] 470
[(Tenn. 1969)]; Bunch [v. Bunch], [No. 02A01-9705-CH-00106,] 1998 WL
46217, at *1 [(Tenn. Ct. App. Jan. 8, 1998)]. While a tenancy by the
entirety can consist only of two persons seized of one estate, both joint
15
 tenancy and tenancy in common “impl[y] a plurality of persons” and “each
of the owners has an undivided moiety, or other proportional part, of the
whole premises.” Tindell, 37 S.W. at 1106 (quoting Den, 10 N.J.L. at 45);
see Taul, 15 Tenn. (7 Yer.) at 336 (citation omitted) (noting that, unlike a
tenancy by the entirety, “[t]he estate of joint tenants is [a] unit, made up of
divisible parts subsisting in different natural persons”).

“Tenants in common are jointly seized of the whole estate, each
having an equal right of entry and possession . . . .” Moore v. Cole, 200
Tenn. 43, 289 S.W.2d 695, 697 (1956). Right of survivorship is not an
incident of tenancy in common; however, the grantor may include in the
instrument of conveyance express language attaching a right of
survivorship to the tenancy in common. See Runions [v. Runions], 207
S.W.2d [1016,] 1017 [(Tenn. 1948)] (“Even a tenancy in common may
have a right of survivorship attached to it if the grantor expresses an
intention that it shall be so.” (quoting Mitchell v. Frederick, 166 Md. 42,
170 A. 733, 735-36 (1934))).

Id. at 400-401 (footnotes omitted). We note that “the creation of a tenancy by the entirety
can be rebutted only when a contrary intention is expressed in the instrument itself, as
opposed to extrinsic evidence.” Smith v. Sovran Bank Cent. S., 792 S.W.2d 928, 930
(Tenn. Ct. App. 1990).

In finding that the language of the 2000 Deed unambiguously created a tenancy in
common, the trial court stated in its judgment in pertinent part:

In the present case, the language of the deed provides for an
ownership as tenants in common. The deed states:

THIS I[N]DENTURE made and entered into on this the 22nd
day of August, 2000, between EAST TENNESSEE CHAIR
COMPANY, INC., party of the first part, and WILLIAM
NUNLEY, JEWEL NUNLEY and ANTHONY NUNLEY, as
tenants in common, parties of the second part.

The language leaves no ambiguity because it plainly states the
tenancy. The language here uses explicit, clear language of tenants in
common in the deed to establish ownership. The intent of the parties is
evidenced by the language from the deed that states the names followed by
the legal phrase “tenants in common.”

16
 It is true that the deed fails to explain that Jewel and William
[Nunley] were married. [Personal Representative] asserts the lack of words
concerning marriage is evidence that the deed is latently ambiguous. As
such, one could infer that the deed lacks clarity because there is no
language to show the relationship of the parties or a clause to clarify the
ownership. Nonetheless, the deed explicitly states that the tenancy is a
tenants in common arrangement. Therefore, the language of the deed is
clear and unambiguous.

Further, the language, here, does not leave any latent ambiguities
because the language clearly states the intent of the parties. The deed uses
the descriptive legal phrase, tenants in common, following the creation of
the tenancy. The 2000 Warranty Deed created a Tenancy in Common.

***

Here, the deed uses the phrase “tenants in common” following the
names of the parties who are in tenancy. Here, the plaintiffs argue the
language is clear because it shows the tenancy and the parties in ownership,
while [Personal Representative] argues that the tenancy was intended to be
a tenancy by the entireties because William and Jewel [Nunley] were
married when the tenancy was created and [Decedent] was going to take
ownership. The instrument is assumed to be a tenancy in the entirety unless
the instrument provides an intent to create a tenants in common.
Comparable to Myers [v. Comer, 234 S.W. 325, 326 (Tenn. 1921)], the
deed contains language that explicitly describes a tenancy in common. Id.
at 481. The language, here, shows intent to describe a tenancy in common
because the deed has language that uses the terms, tenants in common.
Therefore, the 2000 Warranty Deed created a tenancy in common.

We agree with the trial court’s determination.

In this case, the language of the 2000 Deed is clear and unambiguous in creating a
tenancy in common among William Nunley, Jewel Nunley, and Decedent. Personal
Representative postulates that under Tennessee law, because William and Jewel Nunley
were married at the time of the 2000 Deed’s execution, a presumption was created that
“the interest in the Property owned by William Nunley and Jewel Nunley was as tenants
by the entirety.” In support of this position, Personal Representative relies on our
Supreme Court’s decision in Bennett v. Hutchens, 179 S.W. 629 (Tenn. 1915). In
Bennett, the 1897 deed at issue listed the two grantees, who were married, by name but
did not specify whether they would hold the property as tenants in common or tenants by
17
the entirety. Bennett, 179 S.W. at 630. The High Court determined that the deed created
a tenancy by the entirety. Id. (“By the authorities it is held that a deed to husband and
wife, which would at common law have created in them an estate in joint tenancy, had
they not been married, does, by the fact of the marriage, create in the husband and wife
an estate by the entireties.”). More recently, in a case involving the “gap years”
following passage of the Bejach Law, our Supreme Court explained that although during
a time period spanning January 1, 1914, through April 15, 1919, “a conveyance of real
property to a husband and wife created a tenancy in common, with no right of
survivorship,” “at all other times under the common law . . . such conveyance created a
tenancy by the entirety with a right of ownership in the surviving spouse”). Roberts v.
Bailey, 470 S.W.3d 32, 38 (Tenn. 2015).

The key distinction between cases falling under this common law rule and the case
at bar is that the 2000 Deed at issue here specifically set forth the grantees as tenants in
common.3 The trial court analogized the factual situation here to that in Myers v. Comer,
234 S.W. 325, 326 (Tenn. 1921), wherein the deed in question conveyed property to a
husband and wife “‘jointly and severally in equal moities.’” Our Supreme Court
determined that because these words “denote[d] that it was the intention of the grantor
that the grantees should take and hold the land in joint and severable equal shares,”
“[t]his would prevent the grantees from taking as tenants by the entirety.” Id. Contrary
to Personal Representative’s assertion, we do not discern any latent ambiguity in the
omission of the marital relationship between two of the grantees in the 2000 Deed.4
Inasmuch as the 2000 Deed specifically set forth that William Nunley, Jewel Nunley, and
Decedent would own the Property as tenants in common, the trial court properly
concluded that the 2000 Deed unambiguously created a tenancy in common among the

3
Our Supreme Court has recently noted that the common law rule of “a joint tenancy incidentally and
implicitly includ[ing] a right of survivorship” has never been adopted by Tennessee in its statutory
scheme. Estate of Haire v. Webster, 570 S.W.683, 691 n.12 (Tenn. 2019).
4
This Court has defined a latent ambiguity in a contract as follows:

A latent ambiguity is one where the equivocality of expression or obscurity of intention
does not arise from the words themselves, but from the ambiguous state of extrinsic
circumstances to which the words of the instrument refer, and which is susceptible of
explanation by the mere development of extraneous facts without altering or adding to
the written language or requiring more to be understood thereby than will fairly comport
with the ordinary or legal sense of the words and phrases used. Teague v. Sowder, 121
Tenn. 132, 114 S.W. 484 (1908).

Moore & Assocs. Memphis LLC v. Greystone Homeowners Ass’n Inc., No. W2016-00721-COA-R3-CV,
2017 WL 244112, at *4-5 (Tenn. Ct. App. Jan. 20, 2017) (quoting Ward v. Berry & Assoc., 614 S.W.2d
372, 374 (Tenn. Ct. App. 1981)).

18
three grantees with each owning an undivided one-third interest. See id. (“It is also the
general rule governing the construction of deeds, when it is sought to determine what
estate was conveyed thereby, to ascertain the intention of the parties, if possible, by
giving to each word of the deed its appropriate meaning and enforce that intention.”).

In determining that the reformation of the 2000 Deed requested by Personal
Representative was not possible, the trial court found in its judgment in relevant part:

Here, [Personal Representative] seeks to reform the 2000 warranty
deed to reflect the alleged original intent of William [Nunley], Jewel
[Nunley] and [Decedent] that either survivor spouse would have a one-half
interest in the property that could be sold to [Decedent] as reflected by the
assertion that [Decedent] acquired full title with the 2013 Contract to
Purchase. This is a request of the Court that requires the Court to rewrite
the 2000 deed, not merely reform it. If the Court attempted to reform the
2000 Warranty Deed, the change will likely reflect the intention of two
parties, Jewel [Nunley] and [Decedent], at the time of the purchase contract
in 2013. However, the reform will not represent all parties’ interest. The
2013 Contract was made after the death of William [Nunley], years after
the original deed. Therefore, the interests and agreement between all three
parties is likely not reflected in the 2013 Contract. Furthermore, the Court
will lack testimony of two of the three parties who obtained ownership. In
conclusion, the Court will not reform the deed because [Personal
Representative] will not be able to show a mistake with clear evidence as
two parties are deceased and the contract only concerns two of the parties
years after the original deed.

The trial court thus found that William Nunley’s intent at the time of the 2000 Deed’s
execution could not be known and could not be demonstrated by the evidence of
subsequent agreements between Jewel Nunley and Decedent that Personal Representative
sought to present. Upon careful review, we agree with the trial court on this point as
well.

Regarding the reformation of a written agreement, such as the 2000 Deed at issue
here, this Court has articulated:

[I]t is well settled that the courts have the power to alter the terms of a
written contract where, at the time it was executed, both parties were
operating under a mutual mistake of fact or law regarding a basic
assumption underlying the bargain. The courts are also empowered to
modify the provisions of a written contract where only one of the parties
19
 was operating under a mistake of fact or law if the mistake was influenced
by the other party’s fraud.

The judicial alteration of the provisions of a written agreement is an
equitable remedy known as “reformation.” The basic purpose of
reformation is to make the contract “conform to the real intention of the
parties.” It is “driven by a respect for the parties’ intent and gives effect to
the terms mutually agreed upon by the parties.” Because the law strongly
favors the validity of written instruments, a person seeking to reform a
written contract must do more than prove a mistake by a preponderance of
the evidence. Instead, the evidence of mistake must be clear and
convincing.

An important subcategory of mistake is mistake in the expression, or
integration, of the agreement. A mistake in expression occurs where one or
both parties to a written contract erroneously believe that the contract
embodies the agreement that both parties intended it to express. In such
cases, the courts may adjust the provisions of the written contract to make it
express the true agreement reached by the parties.

In order to obtain reformation on the basis of mistake in expression,
a party must present clear and convincing evidence that: (1) the parties
reached a prior agreement regarding some aspect of the bargain; (2) they
intended the prior agreement to be included in the written contract; (3) the
written contract materially differs from the prior agreement; and (4) the
variation between the prior agreement and the written contract is not the
result of gross negligence on the part of the party seeking reformation.
Reformation is not automatically barred simply because one of the parties
denies that there was an antecedent agreement or claims that the mistake
was not mutual.

Sikora v. Vanderploeg, 212 S.W.3d 277, 286-88 (Tenn. Ct. App. 2006) (footnotes and
internal citations omitted).

As Plaintiffs have asserted on appeal, the parties to the 2000 Deed included the
grantor, The Chair Factory, as well as the three grantees. Personal Representative has
made no factual assertions regarding whether The Chair Factory intended to convey the
Property to the grantees as an equally divided, three-part tenancy in common or as a two-
part tenancy in common with one-half of the ownership interest as a tenancy by the
entirety. Collier v. Walls, 369 S.W.2d 747, 760 (Tenn. Ct. App. 1962) (defining a mutual
mistake as “a mistake common to all the parties to the written contract or the instrument
20
or in other words it is a mistake of all the parties laboring under the same
misconception.”). Inasmuch as the grantees were the parties whose rights were affected
by the distinction, for purposes of this analysis and in light of the issues raised by
Personal Representative, we will confine our consideration of intent at the time of the
2000 Deed’s execution to the grantees. However, we note that in the event that the
reformation action had proceeded to trial, the intent of The Chair Factory at the time of
the 2000 Deed’s execution also would have been relevant.

Personal Representative posits that if the trial court had considered all of the
factual allegations in her reformation complaint as true, pursuant to the Rule 12.03
standard for a judgment on the pleadings, the court would have found that her allegations
revealed a mutual mistake in the use of the language, “tenants in common,” in the 2000
Deed. However, in her complaint and in her argument, Personal Representative relies
heavily on documents and assertions related to documents created and executed in 2013
and 2015, long after the 2000 Deed had been executed and long after one of its three
grantees, William Nunley, had died in 2007. The only factual allegation in Plaintiff’s
complaint concerning William Nunley’s intent at the time of the 2000 Deed’s execution
is the following paragraph:

[Personal Representative] avers that [Decedent] entered into an agreement
with his parents, William Nunley and wife, Jewel Nunley to purchase a
warehouse for $260,000.00 from East Tennessee Chair Company, and that
William Nunley and wife, Jewel Nunley would use their home to borrow
the money for said purchase and that [Decedent] would pay back the
indebtedness and he would own the property outright.

(Paragraph numbering omitted.)

We emphasize that in order to reform the 2000 Deed based on a mutual mistake,
Personal Representative would have to be able to demonstrate that the mistake occurred
at the time of the deed’s execution. See Sikora, 212 S.W.3d at 288 n.13 (“To reform a
contract based on mistake, a plaintiff must establish that the contract was executed under
mutual mistake or a unilateral mistake induced by the defendant’s fraudulent
misrepresentation.” (quoting 27 WILLISTON ON CONTRACTS § 70:93, at 495)); see, e.g.,
Hitchcock Metal Sources, Inc. v. Mulford, No. E2003-00738-COA-R3-CV, 2004 WL
178390, at *6 (Tenn. Ct. App. Jan. 29, 2004) (affirming the trial court’s denial of the
plaintiff’s request to reform the parties’ contract upon concluding that “the essential
element” of mutual mistake had not been met).

Even when taken as true, Personal Representative’s allegation does not set forth
whether William Nunley intended to own the Property prior to Decedent’s payment of
21
the indebtedness as equal tenants in common with Jewel Nunley and Decedent or, as
Personal Representative contends, as a one-half tenancy by the entirety with Jewel
Nunley with the other one-half interest vested in Decedent. The allegation merely sets
forth an agreement that once Decedent paid off the debt, he would own the Property
“outright.” Nothing is set forth in the complaint concerning William Nunley’s intent in
the event that he died before the completion of the agreement, which he unfortunately
did. Ergo, the trial court did not err in determining that Personal Representative had
failed to present a viable claim for reformation of the 2000 Deed.

VI. Motion in Limine

Personal Representative has also raised an issue concerning whether the trial court
erred by granting Plaintiffs’ motion in limine upon finding documents and testimony
inadmissible based on the Tennessee Statute of Frauds, the parol evidence rule, and the
Tennessee Dead Man’s Statute. In response, Plaintiffs have raised an issue specifically
regarding the 2013 Quitclaim Deed and the 2015 Agreement if this Court were to
conclude that the trial court had erred in granting the motion in limine. Having
determined that the trial court did not err by granting Plaintiffs’ motion for judgment on
the pleadings based on the plain language of the 2000 Deed and the lack of any available
evidence concerning William Nunley’s intent in entering into a tenancy in common, we
further determine that the parties’ issues pertaining to the motion in limine are
pretermitted as moot.

VII. Conclusion

For the foregoing reasons, we affirm the judgment of the trial court. We remand
this case for enforcement of the judgment, further proceedings consistent with this
opinion, and collection of costs below. Costs on appeal are taxed to the appellant, Tiny
Nunley, individually and as Administratrix of the Estate of Anthony Gene Nunley.

_________________________________
THOMAS R. FRIERSON, II, JUDGE

22