### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE April 4, 2001 Sessio

n HARRY M. PACK v. TINA LE WIN PONAK Appeal from the Circuit Court for Lincoln County No. C0000014 F. Lee Russell, Judge

No. M2000-02285-COA-R3-CV - Filed June 22, 2001

The Lincoln County

Cir cuit Co urt granted the appellee’s motion for summary judgment allowing the sale of real pro

perty held a

s joint tenants

withthe right of survivorship. We find, however, that whether there is an agr

eement not to part

ition the property

is a disputed question of

fact. We revers

e the trial court and remand for further proceedings in accordance with this opinion. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Lincoln County Circuit Court Reversed and Remanded
B EN H. C ANTRELL , P.J., M.S., delivered the opinion of the court, in which D. M ICHAEL S WINEY , J. and D ON R. A SH , S P
. J joined. Jerre Michael Hood, Winchester, Tennessee, for appellant, Tina Lewin Ponak. Johnny D. Hill, Jr., Fayetteville, Tennessee, for appellee , Harry M. Pack OPINION I. The parties resided in California, where appellant Tina L. Ponak served as a

ppellee Harry

M. Pack’s caregiver. Sometime in 1993, they moved t o Ten nessee and purchased a parcel of real pro pert y. The deed, dated April 29, 1993, transferred the real proper

ty to them as “joint tenants (and not as tenants in common), the survivor taking . . . .” Appellant cared for appellee for more than nine years. I n February of 2000 the appellee filed a Complaint for Partition. The appellant filed an answer and counter-claim asserting that the parties had an agreement that the property w

ould not be sold and that it would ultimately become hers as compensation for

her services.1 Bunch does not te ll us how the proce eds shou ld be divided when the parties have a right of survivorship. It appe ars to u s t hat the div is ion pre sen ts a ve ry c ompl

ica ted pro ble m. -2- The appellee filed a motion for summary judgment and attached

a “Statement of Undisputed Material Facts.” The unsworn statement simply recited t he provisions of the

deed and refer

red to an affidavit of a real estate agent giving his opinion that the property could not be partitionedin kind. The appellant filed an unsworn response to the appellee’s statement, pointing out that the parties’ agreement tha

t the property

be held and not sold

was stil l a dis puted fact. The trial j udge granted the moti

on for summary

judgment. II. Upon review of a grant of summary judgment, this Court must determine whether the requirements

of Tenn. R. Civ. P. 56 have been satisfied. See Hunter v. Bro wn , 955 S.W.2d 49, 50-51 (Tenn

. 1997). As this inquir y involves pu

rely a ques

tion of law, our re

view is de novo wit

hout a presumption of correctness. Robinson v. Omer , 952 S.W.2d 423, 426 (Tenn. 1997); McClung v. DeltaSquare Ltd. Partners hip , 93 7 S. W.2 d 89 1, 8 94 ( Ten n. 1 996 ). S umm ary j udgmen ts are appropriate

only where the

re is no g enuine issue of ma terial fact rel

evant to the claim o

r defense containedin t he moti on and the moving party is entitled to a judgment as a matter of law on the undisputed facts. See Tenn. R. Civ. P. 56.03; B ain v. Wells , 936 S.W.2d 618, 622 (Tenn. 1997); Carvell v. Bottoms , 900 S.W.2d 23, 26 (Te nn. 1995). Courts re

viewing summary

judgments must view the evidence in the light most favo rable to t he nonmoving par ty and draw

all reasonable inferences in the nonmoving party's favor. Omer , 952 S.W.2d at 426; Byrd v. Hall , 847 S.W.2d 208, 210 (Tenn. 1993). In view of these standards, we turn now to the legal principles involved in this appeal.
In Bunch v. Bunch , No. 02A01-9705-CH-00106, 19 98 WL 46217, at *3 (Tenn. Ct. App. 1998), this court held tha

t a person holding title to land as a joi nt tenant with a rig

ht of survivorship could, nevertheless, seek a partition under Tenn. Code Ann. § 29-27-101. 1 We also held that a joint tenant who participated in the creation of the joint tenancy was not estopped from seeking partition unless the other joint tenants justifiably relied to their detriment on the acts of the joint tena n t seeking partition. But, in l ine with the courts

of other states, we recognized that a joint tenant could, by contract, give

up the right to par

tition. That, it seems to us, is the position the appellant has taken in this case, and w

hether such an a

greement exists is

still a disputed fac

t. In this case, the app

ellee has not eve

n denied the alleg

ation in the answer

and countercla

im that he promised to retain the property for the ultimate benefit of the appellant in exchange f or her promise to render services to him. Certa inly, he has not provided any evidence negating the existence of the agreement so that the burden of proof shifts to the appellant. As our Supreme Court said in Byrd v. Hall , “[a] conclusory assertion that the non-moving party ha s no evidence is

clearly insufficient”

to shift the burden

to the non-moving

party to pro

duce its evidence of the fact on which it relies. 847 S.W.2d 208 at 215 (Tenn. 1993). Since the record does not negate the existence of an2 The appellant has filed a m otion to dismiss the case based on the fact that,

post-trial

, the appellee t

ransferred his interest to a third party. W e think this issue shou ld be pres ented to th e trial court o n rema nd. The refore, w e overru le the mo tion filed in th is court. -3- agreement

that the property would not be sold, summary judg ment allow ing the sale for partition should not be granted. 2
We reverse the summary judgment i

n favor of the appellant and remand the cause to the Ci rcuit Court of Lincoln County for further proceeding s. Tax the costs on appeal to the appellee, Harry M. Pack.

_________________________________________ BEN H. CANTREL

L, PRESIDI

NG JUDGE, M.S.