IN THE COURT OF APPEALS OF TENNESSEE

AT JACKSON

April 26, 2017 Session

WILLIAM DALE ALSUP v. DAVID C. ALSUP

Appeal from the Chancery Court for Henry County

No. 22941 Carma Dennis McGee, Chancellor

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No. W2016-00925-COA-R3-CV

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This is a declaratory judgment case. Decedent, mother to the parties, died testate, leaving 

a holographic will that divided her real property between her two sons, David 

Alsup/Appellant and William Alsup/Appellee. The probate court admitted the will to 

probate. Following completion of the probate proceeding, William obtained a survey

dividing the property as provided for in Decedent’s will. David refused to accept the 

survey procured by William, and William then filed this action to quiet title and for 

ejectment. David filed an answer but did not file a counterclaim or a countervailing 

survey. William moved for summary judgment, which the trial court granted. 

Discerning no error, we affirm.

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

Affirmed and Remanded

KENNY ARMSTRONG, J., delivered the opinion of the court, in which ARNOLD B. GOLDIN

and BRANDON O. GIBSON, JJ., joined.

David C. Alsup, Buchanan, Tennessee, Appellant, Pro Se.

William Dale Alsup, Paris, Tennessee, Appellee, Pro Se.

1

MEMORANDUM OPINION2

 

1 Appellee did not file a brief or otherwise participate in this appeal.

2

Rule 10 of the Rules of the Court of Appeals of Tennessee provides:

This Court, with the concurrence of all judges participating in the case, may affirm, 

reverse or modify the actions of the trial court by memorandum opinion when a formal 

opinion would have no precedential value. When a case is decided by memorandum 

05/23/2017
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I. Background

On December 20, 2005, Helen Alsup (“Decedent”) died testate. On November 13, 

2002, Decedent executed a holographic will, which provided that Decedent’s real 

property, which is located in Henry County, Tennessee (the “Property”), would be 

divided into two tracts, with one tract given to each of her two sons, David Alsup 

(“Appellant”) and William Alsup (“Appellee”). Decedent’s holographic will devised the 

Property to David and William as follows:

[First,] William D. Alsup to receive the first 150 feet from Wm. D. Alsup 

property (Johnson’s) Hwy 79N frontage and then to back property line with 

side line straight to back where Davids (sic.) begins. 

[Second,] David C. Alsup to receive 262 ft[.] Hwy 79 N. frontage and then 

to side & back line. [Third,] [a]proximately (sic.) [a]t 412 ft. Hwy 79 N. 

frontage total both property to include any building on their part of land. 

Any property cost divided equally or individually on their part.

On August 2, 2011, the probate court admitted Decedent’s will to probate. The probate 

court ordered, in relevant part:

[T]he hand[]written document dated 13 November, 2002 submitted to the 

[c]ourt is a valid [h]olographic [w]ill and is the last will and testament of 

Ms. Helen M. Alsup and shall be entered into the [p]robate records as the 

last will and testament of Ms. Helen M. Alsup....

[T]he [h]olographic will of Ms. Helen M. Alsup shall be entered for 

muniment of title to the real property owned by Ms. Helen M. Alsup at the 

time of her death....

Neither party appealed the probate court’s order. In an effort to divide the Property 

pursuant to the probate court’s ruling, on January 12, 2015, William procured a survey of 

the Property. The survey divided the Property into two tracts: (1) a 0.840 acre-tract, with 

150 feet of frontage along Highway 79 North; this parcel contained a house, barn, and 

shed; (2) a 0.662-acre tract, with 262 feet of frontage along Highway 79 North, with no

improvements.

On February 25, 2015, William, who was represented by counsel, filed a 

declaratory judgment action against David in the Chancery Court for Henry County 

 

opinion it shall be designated “MEMORANDUM OPINION”, shall not be published, and 

shall not be cited or relied on for any reason in any unrelated case.
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(“trial court”). Specifically, William asked the trial court to declare that his survey was

consistent with Decedent’s holographic will and to vest title in each brother for his 

respective parcel, i.e., William would receive the 0.840-acre parcel, and David would 

receive the 0.662-acre parcel. On April 8, 2015, David, acting pro se, filed an answer to 

William’s complaint, denying that the survey comported with Decedent’s will. David did 

not proffer a separate survey, but averred that he should receive the larger parcel, with the 

improvements, as set out in the survey that William provided. David further alleged that 

he had filed a notice of claim of rights and undivided interest in real property due to

“[William]’s willful breach of contract and failure to contract in good faith about the said 

property.” David did not file a counter-complaint for breach of contract, nor did he 

attach a copy of the referenced contract to his answer.

On July 31, 2015, William moved for summary judgment, on the grounds that the 

probate court had determined that Decedent’s will was valid and the survey he procured 

comported with the will. On October 5, 2015, David filed a response to the motion for 

summary judgment, stating there was a “contract of August 18, 2012[,] agreed to and 

signed by the parties... where[in] [William] admits that... the property... [is] the property 

of [David].” On October 28, 2015, David amended his response to the motion for 

summary judgment and attached a document titled “Agreement for the Sale and 

Exchange of Real Property,” which is dated August 18, 2012.

On November 19, 2015, the trial court heard William’s motion for summary 

judgment. On February 12, 2016, the trial court entered an order granting the motion for 

summary judgment, stating:

On May 11, 2011, [Decedent’s] Last Will and Testament was 

entered for muniment of title to said real property by Order of the Probate 

Court of Henry County, Tennessee.

* * *

Said Order of May 11, 2011, which was entered on August 2, 2011, further 

directed that [David] would have forty-eight (48) hours beginning May 17, 

2011, at 1:00 p.m. to remove any personal property that he might own from 

the property devised to [William] by the Last Will and Testament of Ms. 

Alsup. No appeal was taken from said Order of the Probate Court and no 

proceedings were instituted to contest said Last Will and Testament. 

Pursuant to the Last Will and Testament, [William] caused said property to

be surveyed and filed a copy of said proposed survey.... [David] has 

refused to recognize the boundaries of said survey and the division of said 

land. However, [David] has not provided any proposed alternative survey 

of the property, but has stated that he does not agree with the survey.
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* * *

[David] has admitted that he filed a Notice of Claim of Rights and 

Undivided Interest in Real Property which has created a cloud on the title to 

[William]’s property which he inherited under the terms of said Last Will 

and Testament. However, this is on a separate tract of real property which 

allegedly was owned by the parties’ father at the time of his death and is 

not a part of these proceedings. Although referenced by [William] in Item 

21 of his complaint, there is no proof that this document is in any way 

related to the subject property.

Based upon these findings, the [trial court] finds as a matter of law 

that there are no genuine issues of material fact which exist in this matter. 

As to the location of the parties’ boundary line, [David] has failed to 

provide any proposed alternative survey of the property. Therefore, the 

Court finds that there is no genuine issue of material fact as to the location 

of said line.

* * *

The [trial court] finds that [William] is entitled to summary 

judgment on the Declaratory Judgment and Quiet Title portions of 

[Wiliam’s] claim. The [trial court] finds that quiet title shall be vested in

[William] as to the 0.840 acres which []is reflected on the survey filed for 

record.... The [trial court] further finds that [William] is entitled to 

summary judgment on the Ejectment portion of [William’s] claim. The 

[trial court] finds that [William] has lawful possession of the tract of land 

and, based upon the above finding, [William] is entitled to summary 

judgment on this portion of his claim. [David] shall have forty-eight (48) 

hours from the entry of the Order to remove all of his personal property 

from the said 0.840 acre tract. At the conclusion of said forty-eight (48) 

hour period, pursuant to Tennessee Code Annotated § 29-15-114, a Writ of 

Possession shall enter directing the Sheriff of Henry County, Tennessee, to 

place [William] in possession of said 0.840 acre tract. 

On February 16, 2016, the trial court issued a writ of possession to William for the 

0.840 acre tract. David appeals.

II. Issues

The sole issue in this appeal is whether the trial court erred in granting Appellee’s 
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motion for summary judgment.

3

III. Standard of Review

Summary judgment is appropriate when “the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, show that 

there is no genuine issue as to any material fact and that the moving party is entitled to a 

judgment as a matter of law.” Tenn. R. Civ. P. 56.04. We review a trial court’s ruling on 

a motion for summary judgment de novo, without a presumption of correctness. Rye v. 

Women's Care Center of Memphis, MPLLC, 477 S.W.3d 235, 250 (Tenn. 2015) (citing 

Bain v. Wells, 936 S.W.2d 618, 622 (Tenn. 1997)). “In doing so, we make a fresh 

determination of whether the requirements of Rule 56 of the Tennessee Rules of Civil 

Procedure have been satisfied.” Id. (citing Estate of Brown, 402 S.W.3d 193, 198 (Tenn. 

2013)).

Before turning to the issue, we note that Appellant is self-represented in this 

appeal. However, “pro se litigants are held to the same procedural and substantive 

standards to which lawyers must adhere.” Brown v. Christian Bros. Univ., No. W2012-

01336-COA-R3-CV, 2013 WL 3982137, at *3 (Tenn. Ct. App. Aug. 5, 2013), perm. app. 

denied (Tenn. Jan. 15, 2014). As explained by this Court:

Parties who decide to represent themselves are entitled to fair and equal 

treatment by the courts. The courts should take into account that many pro 

se litigants have no legal training and little familiarity with the judicial 

system. However, the courts must also be mindful of the boundary between 

fairness to a pro se litigant and unfairness to the pro se litigant’s adversary. 

Thus, the courts must not excuse pro se litigants from complying with the 

same substantive and procedural rules that represented parties are expected 

to observe.

Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003) (internal citations 

omitted).

IV. Analysis

Appellant argues that the trial court failed to consider a purported August 18, 2012

contract, which the parties allegedly executed after the probate court’s ruling. In David’s

answer to the complaint, he avers that he “filed a notice of claim of rights and undivided 

 

3 Appellant attempts to raise issues concerning criminal statutes and claims of fraud against 

Appellee. From our review of the record, Appellant did not raise these arguments in the trial court.

Issues not raised in the trial court may not be raised for the first time on appeal. Taylor v. Beard, 104 

S.W.3d 507, 511 (Tenn. 2003). Accordingly, these issues are waived.
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interest in real property to secure his interest in the noted property after [William’s] 

willful breach of contract and failure to contract in good faith about the said property.”

Although we interpret David’s answer liberally, we cannot conclude that the answer 

makes out a counterclaim sufficient to put William on notice of a breach of contract 

claim. See Tenn. R. Civ. P. 8.01 (requiring a pleading to “contain a short and plain 

statement of the claim showing that the pleader is entitled to relief”); Rampy v. ICI 

Acrylics, Inc., 898 S.W.2d 196, 198 (Tenn. Ct. App. 1994) (stating, “[i]t is inappropriate 

for the court to create a claim where none exists.”). Furthermore, David did not attach a

copy of the alleged contract to his answer. Tenn. R. Civ. P. 10.03 (“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....”). In fact, David first attached the purported contract of August 18, 2012 to an

October 28, 2015 filing, titled “[Appellant’s] Amended Response to [Appellee’s] So 

Called Statement of Undisputed Material Facts in Support of the Plaintiff’s Motion for 

Summary Judgment.” However, David did not provide any explanation to the trial court 

as to the alleged relevance of the document; instead, he stated that he “file[d] a Notice of 

Claim of Rights and Undivided Interest in Real Property to secure his interests in an 

entirely different property out in Buchanan, Tennessee[,] which was part of the aforesaid 

agreement of August 18, 2012[,]....” In other words, David has not averred facts 

sufficient to make out a claim for breach of contract. In the absence of a breach of 

contract claim, the facts are not in dispute, and the summary judgment issue rests solely

on the legal determination of whether the survey proffered by William comports with the 

probate court’s uncontested order concerning the division of the Property between the

parties. We now turn to address this question.

As to Decedent’s estate, the probate court held:

[T]he hand[]written document dated 13 November, 2002 submitted to the 

[c]ourt is a valid [h]olographic [w]ill and is the last will and testament of 

Ms. Helen M. Alsup and shall be entered into the [p]robate records as the 

last will and testament of Ms. Helen M. Alsup....

Again, neither party appealed this ruling, and the Property should be divided in 

compliance with the probate court’s order and Decedent’s will. The Decedent’s will

provides:

[First,] William D. Alsup to receive the first 150 feet from Wm. D. Alsup 

property (Johnson’s) Hwy 79N frontage and then to back property line with 

side line straight to back where Davids (sic.) begins. 

[Second,] David C. Alsup to receive 262 ft[.] Hwy 79 N. frontage and then 

to side & back line. [Third,] [a]proximately (sic.) [a]t 412 ft. Hwy 79 N. 

frontage total both property to include any building on their part of land. 
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Any property cost divided equally or individually on their part.

William’s survey divides the Property, allocating a 0.840-acre parcel to William, and a

0.662-acre parcel to David. As set out in Decedent’s will, the survey shows a boundary 

between the two parcels perpendicular to the rear boundary of the property, with William 

receiving 150 feet of frontage along Highway 79 North and David receiving 262 feet of 

frontage along Highway 79 North. From our review of the survey adopted by the trial 

court, it comports with the probate court’s division of Decedent’s Property, in accordance 

with her will.

V. Conclusion

For the foregoing reasons, we affirm the trial court’s order. The case is remanded 

to the trial court for such further proceedings as may be necessary and are consistent with 

this opinion. Costs of the appeal are assessed against the Appellant, David C. Alsup and 

his surety, for all of which execution may issue if necessary.

_________________________________

KENNY ARMSTRONG, JUDGE