FILED

March 3, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE COURT OF APPEALS

AT KNOXVILLE

RUSSELL KEITH BERRY, ) CARTER CHANCERY

 ) C.A. NO. 03A01-9707-CH-00410

 )

 Plaintiff-Appellant )

 )

 )

 )

 )

 )

vs. ) HON. LEWIS W. MAY, JR.

 ) CHANCELLOR BY INTERCHANGE

 )

 )

 )

 )

 )

BRIAN LEE BERRY and PAULA ) REVERSED AND REMANDED

FAYE BERRY, )

 )

 Defendants-Appellants )

RUSSELL KEITH BERRY, pro se Appellant.

HOWELL H. SHERROD, JR., She rrod, Stanley, Lincoln & Goldstein,

Johnson City, for Appellees.
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O P I N I O N

McMurray, J.

Plaintiff, Russell Keith Berry, brought this action on behalf

of himself and his grandmother. He alleged that his grandmother,

Lorena Beryl Berry, is mentally incompetent and physically ill and

that the defendants, his brother and sister-in-law, gained unfair

advantage of her incompetency by fraudulently taking control of all

her worldly possessions. The plaintiff also alleged the defendants

converted his personal property while he was incarcerated.

Defendants moved for summary judgment. The motion was granted and

the complaint dismissed. This appeal resulted. We find there are

genuine issues of material fact and reverse the t rial c ourt's

judgment.

The standards governing a review of a trial court's grant of

summary judgment are well-settled:

Tenn.R.Civ.P. 56.03 provides that summary judgment

i s only appropriate where: (1) there is no genuine issue

with regard to the material facts relevant to the claim

o r defense contai ned in the motion, Byrd v. Hall , 847

S.W.2d 208, 210 (Tenn. 1993); and (2) the moving party is

entitled to a judgment as a matter of law on the undisputed facts. Anderson v. S t andard Register Co. ,857

S.W.2d 555, 559 (Tenn. 1993). The moving party has the

burden of provi ng that its motion satisfies these

requirements. Downen v. Allstate Ins. Co. , 811 S.W.2d

523, 524 (Tenn.1991).
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The standards governing the assessment of evidence

i n the su mmar y judgment context are also well established. Courts must view the evidence in the light most

favorable to the nonmoving party and must also draw all

reasonable inferences in the nonmoving party's favor.

Byrd , 847 S.W.2d at 210-11. C ourts should grant a

summary judgment only when both the facts and the

conclusions to be drawn from the facts permit a reasonable person to reach only one conclusion. Id.

Carvell v. Bottoms , 900 S.W.2d 23, 26 (Tenn. 1995).

Accepting all of plaintiff's allegations as true and taki n g

all reasonable inferences in his favor, the record reveals the

following facts. The parties' grandmother was 84 years old at the

time of the complaint. In February of 1995, she suffered a stroke

which required her to be hospitalized for several weeks. Affidavits of the plaintiff, his wife, the grandmother's sister and the

grandmother's niece state that the gran dmothe r was in a confused

and weakened mental state due to her medical condition. Her sister

testified in her affidav it tha t "the stroke left her mentally

incapacitated and unable to manage her own business affairs or make

important decisions." 

While she was in the hospital, the defendants approached the

grandmother and offered to let her live with them if she would

agree to give them all her worldly possessions. The grandmother

agreed and the defendants arranged to take control of and transfer

her possessions to themselves without the rest of the family's

knowledge. 
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The plaintiff is presently incarcerated in the Tennessee penal

system and has been since 1979. He alleges that he left certain

items of his personal property with his grandmother for safekeeping. The affidavits of his wife and the grandmother's niece

support this allegation. When the defendants took control of all

the property in the grandmother's apartment, plaintiff alleges they

also converted his personal property. Defendants have made no

answer to this allegation other than to deny knowledge of the

existence or whereabouts of plaintiff's personal property.

The grandmother stayed with the defendants for approximately

fifteen months. During that time, defendants took control of her

only source of income—a $700 monthly disability payment. T h e

grandmother also had a certificate of deposit with a face value of

$20,000. Th e CD was "payable to Lorena Beryl Barry or Russell

Berry [plaintiff] or Randy Berry or Brian Berry [defendant] W/R/S."

After her hospital stay, the grandmother signed over the CD to the

defendant, signing a statement which said, "I Beryl Barry want my

CD to be in the name of Brian L. Berry only." She also added the

defendants' names to her personal checking account.

I n July of 1996, the grandmother was placed in a nursing home

after suffering another stroke. Plaintiff filed his complaint on

April 23, 1997, alleging that the defendants fraudulently converted

his grandmother's property through undue influence and the abuse of
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a confidential relationship. He also alleged that they had

converted his personal property which he valued at $21,200.

Defendants moved for summary judgment on June 11, 1996. In

support of their motion, they filed, among other things, the

grandmother's affidavit. In it, she stated that she asked the

defendants if she could move in with them and that she voluntarily

signed over the CD in order to defray the extra living expe nses.

She stated that "at no time did [defendants] coerce me into signing

over these funds. I was of sou nd mind and totally aware of my

actions. These funds were used for my care and support."

Defendan t s als o filed her doctor's affidavit, in which it was

stated that "she was competent to make decisions regarding her care

and support in February of 1995. She understands the Affidavit

attached hereto and is mentally competent to sign it." 

Apparently because of plaintiff's incarceration and the fact

that he is proceeding without a lawyer, the trial court granted

summary judgment ex parte . 

I t is apparent that genuine issues of material fact exist

regarding the grandmother's me n t al capacity, the propriety of

signing over the CD which was listed as paya ble t o the plaintiff

with rights of sur vivorship, whether the defendants abused a

conf idential relationship with the grandmother, and whether they
6

converted the plaintiff's property. While it is arguable that the

affidavits of the grandmother and her doctor should carry substantial weight on the question of her mental capacity, neither this

court nor the trial court i s allowed to weigh the evidence on

summary judgment. Plaintiff has presented clear and competent

evidence to the contrary, sufficient to raise a question for the

trier of fact.

 

Defendants argue on appeal that plaintiff is guilty of laches

i n failing to prosecute his conversion claim at an earlier time.

The record reveals that the defendants did not file an answer, and

this argument was not presented to the trial court in their summary

judgment motion. Rule 8.03, T.R.Civ.P. requires that all

affirmative defenses be set forth in a defendant's response. Our

jurisdiction is appellate only, T.C.A. §16-4-108(a)(1). We do not

find in the record any showing that the defendant's laches argument

was raised in the trial court. As a general rule, a party is not

entitled to relief on an issue that is raised for the first time on

appeal. Lawrence v. Stanford , 655 S.W.2d 927, 929 (Tenn. 1983).

We find no merit in this issue.

Although they do not raise it as an issue, the defendants

state in the conclusion to their brief that the plaintiff's appeal

i s frivolous and ask f or at torney's fees both at the trial level
7

and appellate level. We do not find this to be a frivolous appeal.

The judgment of the trial court granting summary judgment in

favor of the defendants is reversed and the case remanded for trial

for such other and further action as may be necessary and consiste n t with th is opinion. Costs on appeal are assessed to the

appellees.

______________________________

Don T. McMurray, Judge

CONCUR:

___________________________________

Houston M. Goddard, Presiding Judge

________________________________

Charles D. Susano, Jr., Judge
IN THE COURT OF APPEALS

AT KNOXVILLE

RUSSELL KEITH BERRY, ) CARTER CHANCERY

 ) C.A. NO. 03A01-9707-CH-00410

 )

 Plaintiff-Appellant )

 )

 )

 )

vs. ) HON. LEWIS W. MAY, JR.

 ) CHANCELLOR BY INTERCHANGE

 )

 )

 )

BRIAN LEE BERRY and PAULA ) REVERSED AND REMANDED

FAYE BERRY, )

 )

 Defendants-Appellants )

JUDGMENT

This appeal came on to be heard upon the record from the

Chancery Court of Carter County, briefs submitted on behalf of the

parties. Upon consideration thereof, this Court is of the opinion

that there was reversible error in the trial court.

The judgment of the trial court granting summary judgment in

favor of the defendants is reversed and the case remanded for trial

f o r such other and further action as may be necessary and c o n -

sistent with this opinion. Costs on appeal are assessed to th e

appellees.

PER CURIAM