Jerry Green v. Cynthia Panter

04/26/2024
IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs March 1, 2024

JERRY GREEN v. CYNTHIA PANTER, ET AL.

Appeal from the Chancery Court for Hamilton County
No. 20-0681 Pamela A. Fleenor, Chancellor
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No. E2022-01447-COA-R3-CV
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This is a partition in kind action. The three owners of 68 acres entered into a joint
stipulation appointing three commissioners to partition the property into three separate
parcels. Thereafter, the commissioners filed a written report with a survey that allocated
32.4 acres to the plaintiff Jerry Green, 17.8 acres to the defendant Robert Hale, and 18.1
acres to the defendant Cynthia Panter. After the defendants filed exceptions to the
commissioners’ report, the parties agreed to have one of the commissioners testify to state
the commissioners’ factual findings and reasoning. Pursuant to the parties’ agreement,
Commissioner Bill Haisten testified in open court, explaining, in part, that more acreage
was partitioned to the plaintiff because much of the parcel allocated to him is hilly and
rocky and another large portion of the plaintiff’s parcel is encumbered by a TVA power
line easement. Commissioner Haisten also testified that while the three partitioned parcels
are not equal in area, they are equal in fair market value. Based upon these additional facts,
the trial court concluded that the partitioning of the property by the commissioners should
be confirmed. The defendants appeal, contending, inter alia, that without sufficient proof
of either the value of the property partitioned or of the evaluations from which the
commissioners derived their partition division, the trial court erred in confirming the
commissioners’ report. We affirm.

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

FRANK G. CLEMENT, JR., P.J., M.S., delivered the opinion of the court, in which J. STEVEN
STAFFORD, P.J., W.S., and JOHN W. MCCLARTY, J., joined.

James W. Clements, III, Chattanooga, Tennessee, for the appellants, Cynthia Panter and
Robert Hale.

William H. Horton and Carol M. Ballard, Chattanooga, Tennessee, for the appellee, Jerry
Green.
 OPINION

FACTS AND PROCEDURAL HISTORY

Peggy Hale (“Mrs. Hale”) died on March 29, 2018. She was the wife of defendant
Robert Hale (“Mr. Hale”) and mother to plaintiff Jerry Green (“Mr. Green”), and defendant
Cynthia Panter (“Ms. Panter”). At the time of her death, Mrs. Hale owned approximately
68 acres of land that surrounded the home that she jointly owned as tenants by the entirety
with her husband, Mr. Hale, and that adjoined properties separately owned by plaintiff Mr.
Green and defendant Ms. Panter. Although the parties knew that Mrs. Hale had executed a
will in 2017, no will was found. Thus, it was presumed that Mrs. Hale had died intestate.
The parties to this action are the three heirs to Mrs. Hale’s estate. As a consequence of the
intestacy, each party inherited an undivided one-third interest in the 68-acre tract of
property that Mrs. Hale owned at the time of her death.

Two years later, on October 1, 2020, Mr. Green filed a partition petition naming Ms.
Panter and Mr. Hale as co-owners of the property. Thereafter, the parties agreed that
partition in kind was preferred and, by agreed order, a panel of three commissioners was
appointed to partition the property in kind.

The commissioners submitted a written report, which was short on facts but
consisted of a survey that designated in detail the parcel each party was awarded.
Defendants Mr. Hale and Ms. Panter objected to the report on the grounds that the written
report provided no factual basis for the disparate division of property, where Mr. Green
received 32.4 acres while Mr. Hale received 17.8 acres and Ms. Panter received 18.1 acres.
The parties then agreed that one of the commissioners would be called to testify at an
evidentiary hearing to state the commissioners’ factual findings and reasoning for the
division of the property.

The evidentiary hearing was held on September 8, 2022, at which time
Commissioner William Haisten testified and all parties were afforded the opportunity to
question him.

Pursuant to an order entered on September 16, 2022, the trial court affirmed the
commissioners’ report. The court found that the partitioned share of Mr. Green (hereinafter
“Plaintiff”) was appropriate because, as Commissioner Haisten explained, “much of
Plaintiff’s parcel is hilly and rocky and another large portion of Plaintiff’s parcel is
encumbered by a TVA power line easement.” The court further noted that, while the three
parcels were not equal in area, Commissioner Haisten had testified that “they were equal
in fair market value.”

The trial court entered its final judgment in this partition action on September 26,
2022. Mr. Hale and Ms. Panter (hereinafter “Defendants”) timely filed their notice of
appeal on October 13, 2022.

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 At about the same time, meaning at some point in September or October of 2022,
the purported will of Mrs. Hale was found by Mr. Hale.1 As Mr. Hale explained in his post-
judgment testimony, he found the will in September or October of 2022, as it fell out of
Mrs. Hale’s Bible when he picked it up to use while watching a Sunday morning church
service on television.2 The Bible had been in the Hales’ home, on the coffee table in front
of his couch, since Mrs. Hale died in March of 2018.

On October 31, 2022, Defendants filed a petition in the probate court to admit the
purported will to probate, which is presently the subject of a will contest.

Some seven months later, on May 26, 2023, Defendants filed a motion in this court
to consider post-judgment facts, to stay appellate proceedings, and to remand for trial court
consideration of a Rule 60.02 motion they wished to file. By order entered on June 12,
2023, this court granted the motion and remanded the matter for consideration of
Defendants’ Rule 60 relief.

Then, on July 28, 2023, Defendants filed a Rule 60.02 motion in this partition action
seeking to “alter, amend, or suspend the judgment [in the partition action] pending the trial
of the will contest in probate court.” The motion also states that “[a]t some point after the
Notice of Appeal was filed herein, Defendant Robert Hale located a document which he
believed to be the Last Will of Peggy Louise Hale.” Defendants sought to prove that the
will which Mr. Hale had found in Mrs. Hale’s Bible was her last will and testament, and
that, in pertinent part, it had devised the entire 68-tract at issue to Mr. Hale. Thus, Mr. Hale
argued that the judgment in the partition action should be set aside once the purported will
is admitted to probate because he would be the sole owner of the property.

On remand, the trial court denied Defendants’ Rule 60.02 motion on two grounds,
finding that Defendants failed to demonstrate excusable neglect and that Defendants did
not file their Rule 60.02 motion within a reasonable time. Following the denial of the Rule
60.02 motion, this court regained jurisdiction over this appeal.

ISSUES

Defendants present three issues for our consideration, which we have consolidated
and restated as follows:

1. Did the trial court err by denying Defendants’ objections to the commissioners’
report and by accepting the commissioners’ report over the objection of the

1
The document purporting to be Mrs. Hale’s will, which is handwritten, states, “In the event of my
death I leave everything to my husband Robert Hale. Peggy L. Hale.”
2
As Mr. Hale explained, his personal Bible was not close to the couch; thus, he reached for Mrs.
Hale’s Bible, which was sitting on the coffee table in front of him.

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 Defendants, without sufficient proof of either the value of the property so
divided or of the evaluations from which the commissioners derived their
partition division?

2. Did the trial court err in denying Defendants relief under Rule 60.02 of the
Tennessee Rules of Civil Procedure?

ANALYSIS

I.

We begin with Defendants’ second issue, whether the court erred in denying
Defendants relief under Rule 60.02 of the Tennessee Rules of Civil Procedure.

Relief under Rule 60.02 is “an exceptional remedy.” Nails v. Aetna Ins. Co., 834
S.W.2d 289, 294 (Tenn. 1992). A motion under the rule “addresses itself to the sound
discretion of the trial judge,” which is only reviewed by this court for an abuse of discretion.
Underwood v. Zurich Ins. Co., 854 S.W.2d 94, 97 (Tenn. 1993).

Rule 60.02 reads in pertinent part:

On motion and upon such terms as are just, the court may relieve a party or
the party’s legal representative from a final judgment, order or proceeding
for the following reasons: (1) mistake, inadvertence, surprise or excusable
neglect; . . . or (5) any other reason justifying relief from the operation of the
judgment. The motion shall be made within a reasonable time, and for
reasons (1) and (2) not more than one year after the judgment, order or
proceeding was entered or taken.

Tenn. R. Civ. P. 60.02.

Upon the motion of Defendants, this court remanded this case to the trial court for
the limited purpose of conducting a hearing on Defendants’ Rule 60.02 motion “to alter,
amend or suspend judgment of partition.” The trial court denied the motion, finding that
Defendants had failed to demonstrate excusable neglect and finding that Defendants did
not file their Rule 60 motion within a reasonable time. Defendants challenge both findings
in this appeal.

The facts relevant to this issue are as follows. As stated above, Mrs. Hale died on
March 29, 2018. Both Defendants had seen and read Mrs. Hale’s holographic will that she
wrote while the family was attending a barbecue in 2017. Despite searching for her will
following her death, no will was found. Although Defendants both knew the decedent
executed a 2017 will, in their pleadings in the partition action, they both alleged that she

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died intestate and that under Tennessee’s intestate succession law, Mr. Green, Ms. Panter,
and Mr. Hale each inherited a one-third undivided interest in the 68-acre tract at issue.

It was not until September or October of 2022, some four and a half years after Mrs.
Hale’s death, that Mr. Hale found a document that purports to be his wife’s will. The
purported will devised all of the decedent’s property to Mr. Hale. Thus, as Mr. Hale
contends, the partition judgment, should it stand, will deprive Mr. Hale of the bulk of the
real property he inherits under the will.

Mr. Hale testified that he saw his wife’s will when she wrote it during a family
barbecue in 2017. He also testified that he did not know where Mrs. Hale kept her will and
that he did not find it until 2022, when, as we have mentioned, he picked up her personal
Bible, which was positioned on the coffee table in front of Mr. Hale’s couch, for the first
time since her death while watching a televised church service.

For her part, Ms. Panter testified in the post-judgment proceeding that she also saw
her mother write the holographic will at the family barbecue in 2017. Ms. Panter even read
the will at that time. Ms. Panter then testified that she did not see the will again until Mr.
Hale found it in 2022.

Plaintiff contends, inter alia, that Defendants provided no proof of diligence in
attempting to find the will. The trial court agreed, finding that Defendants had presented
no proof of reasonable diligence in attempting to find the will and that they had failed to
demonstrate excusable neglect in not finding it earlier. In pertinent part, the trial court
found: “In their affidavits Defendants do not state what they claim to be the mistake,
inadvertence, surprise, or excusable neglect. Nor do they explain why they failed to avoid
the mistake.” For this and other reasons, the trial court concluded that Defendants “failed
to demonstrate excusable neglect.” We agree.

We also find that the trial court correctly concluded that Defendants failed to seek
Rule 60 relief within a reasonable time of discovering the will. Rule 60.02 motions must
be filed “within a reasonable time.” See Tenn. R. Civ. P. 60.02. Motions based on Rule
60.02(1), as is the case here, must be made “not more than one year after the judgment,
order or proceeding was entered or taken.” Tenn. R. Civ. P. 60.02. Significantly, the one-
year time frame is the “outer limit on the time allowed for filing” such motions. Furlough
v. Spherion Atl. Workforce, LLC, 397 S.W.3d 114, 128 (Tenn. 2013) (citations omitted).

A Rule 60.02 motion, even when filed within one year, can be untimely “if the trial
court finds, as a matter of fact, that the movant has not acted reasonably and that he could
have fairly and reasonably been expected to file the motion much more promptly.” Rogers
v. Est. of Russell, 50 S.W.3d 441, 445 (Tenn. Ct. App. 2001) (quoting Wooley v. Gould,
Inc., 654 S.W.2d 669, 672 (Tenn. 1983)). Whether a party has filed a Rule 60.02 motion

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within a reasonable time is a question of fact, and each case is determined on its facts and
circumstances. Hussey v. Woods, 538 S.W.3d 476, 486 (Tenn. 2017).

As has been stated, Mrs. Hale died on March 29, 2018. This partition action was
commenced in October of 2020. In July of 2021, the parties stipulated to the appointment
of three commissioners. The commissioners’ report was filed on February 24, 2022.
Following Defendants’ objection to the report and the subsequent hearing during which
Commissioner Haisten explained the findings of the commissioners, the trial court entered
its final judgment in the partition action on September 26, 2022. Notice of appeal was
timely filed on October 13, 2022. During this same time period, that being September or
October of 2022, Mr. Hale found the purported will of Mrs. Hale in her Bible.

Then, Defendants filed their petition to admit the purported will to probate on
October 31, 2022. Although the purported will was discovered in September or October of
2022, Defendants waited approximately ten months thereafter to file their Rule 60.02
motion in the partition action.

The trial court found that Defendants provided no explanation for the delay and that
Defendants delayed too long in seeking relief. In reaching this conclusion, the trial court
relied on the reasoning set forth in the case of City of Memphis v. Beale Street Dev. Corp.,
No. W2020-00523-COA-R3-CV, 2021 WL 4282736, at *4 (Tenn. Ct. App. Sep. 21, 2021),
wherein this court held that a six-month delay in filing a Rule 60.02 motion after learning
of grounds for the motion was unreasonable.

Based on these and other facts, the trial court found that the motion was untimely.
We agree.

Considering all of the above, we find no abuse of discretion in the trial court’s
decision to deny Defendants’ Rule 60.02(1) motion. Accordingly, we affirm the trial court
on this issue.

II.

Defendants contend that the trial court erred by accepting the commissioners’ report
over their objection without sufficient proof of either the value of the property as divided
or of the evaluations from which the commissioners derived the partition division.

Our statutory scheme provides that “any person having an estate for years in land,
as a tenant in common with others, is entitled to partition either in kind or by sale.” Breen
v. Sharp, No. M2016-02415-COA-R3-CV, 2017 WL 5462189, at *5 (Tenn. Ct. App. Nov.
14, 2017) (quoting Crawford v. Crawford, No. E2002-00372-COA-R3-CV, 2002 WL
31528504, at *3 (Tenn. Ct. App. Nov. 14, 2002)) (citing Nicely v. Nicely, 293 S.W.2d 30,
32 (Tenn. Ct. App. 1956)). “Tennessee law favors a partition in kind over a partition by

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sale, and any party who seeks a partition by sale must prove by clear and convincing
evidence that an equitable partition in kind is not feasible.”3 Id. (citing Crawford, 2002 WL
31528504 at *3).

Tennessee Code Annotated § 29-27-101 through § 29-27-313 governs partition
proceedings. Specifically, Tennessee Code Annotated § 29-27-101 permits persons owning
interests in real property to file suit to partition the property. “Partition suits require the
trial court . . . to first determine whether the parties have satisfied the statutory requirements
for a partition.” Sitz v. Partin, No. 01-A-01-9212CH00473, 1994 WL 148656, at *2 (Tenn.
Ct. App. Apr. 27, 1994) (citing Henry R. Gibson, Gibson’s Suits in Chancery § 487 (7th
ed. 1988)).

In this case, the parties did not wish to sell the property because they owned
adjoining properties, had family ties to the property, or both. Thus, they entered into an
agreed order to partition in kind, which the trial court approved.4

If the trial court determines that a partition is in order, Tennessee Code Annotated
§ 29-27-114(a) directs the court to appoint “three (3) commissioners, known by the court
or shown to the court to be of good personal character and integrity and knowledgeable in
the type of property to be partitioned.” Tennessee Code Annotated § 29-27-116 requires
the commissioners to “divide the premises and allot the several shares to the respective
parties, quality and quantity respectively considered, according to the respective rights and
interests of the parties as adjudged by the court.”

“A commissioners’ report concerning the partition of property is ‘in the nature of a
special verdict.’” Sitz v. Partin, 1994 WL 148656, at *3 (quoting Burdett v. Norwood, 83
Tenn. 491, 495 (1885); Hardin v. Cogswell, 52 Tenn. (5 Heisk.) 549, 552 (1871)). “The
report of commissioners is to be regarded in the light of a verdict of a jury rendered upon
a trial at law; and it will be disturbed or interfered with by the Court only upon grounds
similar to those on which a verdict would be set aside and a new trial granted.” Hardin v.
Cogswell, 52 Tenn. at 551–52.

3
Tennessee Code Annotated § 29-27-201 lists only two conditions under which a partition by sale
is appropriate: “(1) If the premises are so situated that partition thereof cannot be made; or (2) Where the
premises are of such description that it would be manifestly for the advantage of the parties that the same
should be sold instead of partitioned.”
4
The trial court made the following findings regarding the agreement to partition in kind instead
of selling the property:

What the Court finds is that really none of the parties want this property sold. Definitely
the two defendants, the co-defendants, stated that they want to continue to remain on the
property. It’s family property, it’s been in the family for years. And what the Court heard
from the plaintiff is that he wants to live on the property. It’s always been his dream, he’s
had building equipment there for 30 years to build up on the hill.

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 Because the trial court must treat the commissioners’ report as if it were a special
jury verdict, then we should do the same. Sitz v. Partin, 1994 WL 148656, at *2. Thus, “we
will set aside a commissioners’ report that the trial court has approved only if there is no
material evidence to support it.” Id. (citing Tenn. R. App. P. 13(d)).

Here, the commissioners’ written report provided no facts other than the boundaries
and acreage of each of the three parcels as partitioned by the commissioners. Nevertheless,
the parties agreed, with the consent of the trial court, to hold an evidentiary hearing during
which one of the commissioners would testify concerning the commissioners’ report. The
agreed-upon hearing was held on September 8, 2022, at which time Commissioner Haisten
testified as to the factual basis upon which the commissioners based their decision.

The statement of the evidence approved by the trial court reads in pertinent part:

One of the commissioners, Appraiser Bill Haisten, testified on September 8,
2022 that he and other commissioners, Mr. David Matthews, a surveyor, and
Henry Glasscock, a realtor/auctioneer/developer, came up with their own
proposed partition attached hereto as Exhibit 3. The Court made one small
adjustment to eliminate partition of a small sliver of property owned by Mrs.
Panter, finding in its Judgment:

The Court takes judicial notice that this Court, as well as other
local courts in prior cases, have accepted all three
commissioners as experts in appraisal of real estate in
Hamilton County, in surveying, and in auctioning of real
property.

The Court finds that the commissioners’ main consideration in
partitioning the property was to provide each Party with a
parcel that had a fair market value equal to the other two
parcels. The commissioners met with the Parties without
counsel while inspecting the Property. As a result of the
partition, Plaintiff received 32.4 acres, Defendant Hale
received 17.8 acres and Defendant Panter received 18.1 acres.
The Court finds that this is an equitable partition, because
much of Plaintiff’s parcel is hilly and rocky and another large
portion of Plaintiff’s parcel is encumbered by a TVA power
line easement. Thus while the partitioned parcels are not equal
in area, they are equal in fair market value. Therefore, the Court
finds no good cause to set aside the report of the
commissioners.

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 The Court concludes the commissioners divided the Property
equitably, quality and quantity relatively considered, according
to the interests of the Parties.

The Court concludes the division of the Property as set forth
by the commissioners in their report should be confirmed as
modified to restore Defendant Panter’s original property line.
The commissioners’ report/survey as modified is attached
hereto as Exhibit A and incorporated herein by reference.

The statement of the evidence further reveals that Mr. Haisten testified that more
property was partitioned to Mr. Green for the following reasons:

1. Mr. Hale already has a residence on the Property with a driveway and
access to Gamble Road.
2. Mrs. Panter already had a house surrounded by the Property and also has
access to Gamble Road.
3. Ms. Panter and Mr. Hale had located a trailer on part of the Property, to be
allocated to Mr. Hale, occupied by Ms. Panter’s son.
4. Mr. Green would have to bear substantial expense of a driveway from
Gamble Road to access his property for future use, which will be an
additional expense to him, especially to get to the hill on the back of the
property.
5. The commissioners determined even though there was a TVA easement
impairing the value of the parcel partitioned to Mr. Green, such easement
could be used to construct a road, although no physical improvements could
be constructed in the TVA easement.
6. The commissioners also considered the fact that there was an
encroachment of the garage and pool of Mrs. Panter on the Property, and they
addressed this issue in the proposed partition, as well as the fact that there
was a structure (barn) on the common property partitioned to Mr. Hale that
was of some value to Mr. Hale, and they were partitioning to Mr. Hale the
property where one of the mobile homes had already been located.

As noted earlier, “we will set aside a commissioners’ report that the trial court has
approved only if there is no material evidence to support it.” Sitz v. Partin, 1994 WL
148656, at *2 (citing Tenn. R. App. P. 13(d)). Commissioner Haisten’s testimony, which
the parties agreed would constitute a supplement to the commissioners’ written report,
provides a factual basis for the commissioners’ reasons for the manner in which they
partitioned the property. Thus, there is material evidence that supports the commissioners’
report, which the trial court approved. Accordingly, we affirm the trial court’s decision to
approve the commissioners’ report as modified by the trial court.

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 CONCLUSION

For the foregoing reasons, we affirm the decision of the trial court. Costs of appeal
are assessed against the appellants, Cynthia Panter and Robert Hale, jointly and severally.

________________________________
FRANK G. CLEMENT JR., P.J., M.S.

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