IN THE COURT OF APPEALS OF TENNESSEE

AT NASHVILLE

April 26, 2006 Session

IN THE ESTATE OF: SPENCER BROWN 

 Appeal from the Circuit Court for Dickson County

No. CV1290 Allen W. Wallace, Judge

No. M2005-00864-COA-R3-CV - Filed on October 27, 2006

Four years after the contest of his uncle’s will was filed, Alton Brown filed a Tenn. R. Civ. P. 24

Motion to Intervene in the contest of his uncle’s will. The motion, however, was not accompanied

by a proposed pleading setting forth the claim for which intervention was sought as required by Rule

24.03. Subsequent to the filing of the motion, an order of dismissal of the will contest was entered.

Thereafter, the movant filed his proposed pleading following which the trial court denied the Motion

to Intervene based upon a finding the movant had slept on his rights. Finding no error, we affirm.

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

FRANK G.CLEMENT,JR., J., delivered the opinion ofthe court, in which JERRY SCOTT,SR.J., joined.

WILLIAM C. KOCH, JR., P.J., M.S., filed a dissenting opinion.

David D. Wolfe, Dickson, Tennessee, for the appellant, Alton E. Brown.

Ernest W. Williams and John D. Schwalb, Franklin, Tennessee, for the appellee, Allene Dunnagan.

Connie Reguli, Brentwood, Tennessee, for the appellee, Don Brown.

OPINION

Spencer Brown died in February of 2000, leaving a will that he executed approximately ten

days before his death. In this will, he left his estate, which included his farm, to Allene Dunnagan,

and he left the remainder to be divided equally among his seven nieces and nephews.

One of Spencer Brown’s nephews, Don Brown filed a will contest on April 19, 2000. Don

Brown challenged his uncle’s 2000 will alleging that Allene Dunnagan exerted undue influence over

his uncle to persuade him to execute the new will, which differed significantly from a will that had

been executed in July of 1994. The most notable difference was that pursuant to the prior will,

Spencer Brown’s farm was to go to Don Brown and Alton Brown, not Allene Dunnagan.
In his Notice of Appeal, Alton Brown appealed the denial of his Motion to Set Aside the Order of Dismissal 1

in addition to the denial of his Motion to Intervene. He did not, however, address that issue in his brief. In addition to

other requirements, an appellant is to provide in his brief a statement of the issues, a statement of the relevant facts and

an argument setting forth the contentions of the appellant with respect to the issues presented, and the reasons why the

contentions require appellate relief, along with citations to the authorities and appropriate references to the record. Tenn.

R. App. P. 27(a). Although an issue may have been designated in the notice of appeal, “a party's failure to brief it

ordinarily constitutes waiver or abandonment of the issue.” Mosby v. Colson, No. W2006-00490-COA-R3-CV, 2006

WL 2354763, at *10 (Tenn. Ct. App. August 14, 2006)(other citations omitted). Alton Brown failed to comply with Rule

27(a) as to the denial of his Motion to Set Aside the Order of Dismissal. Therefore, we will limit our review to the issue

properly briefed, that being the propriety of the trial court’s decision to deny the Motion to Intervene.

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Don Brown’s contest of his uncle’s will went to trial by jury in November of 2000. At the

conclusion of Brown’s proof, the trial court directed a verdict in favor of Allene Dunnagan,

dismissing the will contest. Don Brown appealed that decision. In July of 2003, the Court of

Appeals reversed the dismissal of the will contest and remanded the issue for trial on the question

of undue influence. 

On remand, Don Brown sought to amend his Complaint to implead the other heirs, including

Alton Brown. Alton Brown, however, objected to being added as a party to this will contest. The

trial court denied the Motion to Implead Alton Brown and the others. As a consequence, Don Brown

and Allene Dunnagan remained the only parties to the will contest. Thereafter, Don Brown filed a

Motion for Court-Ordered Mediation, and subsequently, the parties reached a settlement and

compromise of the will contest. 

In the interim, which was just one month after Don Brown sought to implead Alton Brown

into the will contest, Alton Brown filed a Motion to Intervene in the will contest. Although Alton

Brown filed the motion, he failed to accompany it with a proposed pleading as required by Tenn. R.

Civ. P. 24. While the Motion to Intervene was pending, Don Brown and Allene Dunnagan submitted

to the court a proposed order to dismiss the will contest, which the trial court signed. The order

dismissing the will contest was filed on December 29, 2004. All the while, Alton Brown’s Motion

to Intervene was pending. The hearing on the Motion to Intervene, which was originally set for

November of 2004, was reset for January of 2005. 

The hearing on Alton Brown’s Motion to Intervene was conducted on January 28, 2005, after

the will contest had been dismissed. It was not until the date of the hearing on the Motion to

Intervene that Alton Brown filed a proposed Intervening Petition as required by Tenn. R. Civ. P.

24.03. Following the hearing on the motion, the trial court denied the motion, from which ruling

Alton Brown appeals.

ANALYSIS

Alton Brown contends the trial court erred by denying his Motion to Intervene in the will

contest initiated by his brother. A person seeking to intervene must file a Motion to Intervene, 1

which “shall state the grounds therefore and shall be accompanied by a pleading setting forth the
The trial court also made the finding that Alton Brown could not decide whether he wanted to support the will 2

or contest the will, referring to the fact that he had previously considered testifying on behalf of Allene Dunnagan in the

will contest.

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claim or defense for which intervention is sought.” Tenn. R. Civ. P. 24.03. Where the Motion to

Intervene is an intervention as of right, the standard by which this court reviews the trial court’s

decision is “de novo, except for the timeliness of the application which is reviewed under an abuse

of discretion standard.” State v. Brown & Williamson Tobacco Corp., 18 S.W.3d 186, 191 (Tenn.

2000) (citing Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1245 (6th Cir. 1997)). 

The trial court denied Alton Brown’s Motion to Intervene upon a finding it was not timely,

that he “slept on hisrightsfor a long time.” Because the denial of the motion was due to timeliness, 2

we will examine the issue pursuant to the abuse of discretion standard. See Brown & Williamson

Tobacco Corp., 18 S.W.3d at 191. “An abuse of discretion exists when the reviewing court is firmly

convinced that the lower court has made a mistake in that it affirmatively appears that the lower

court's decision has no basis in law or in fact and is therefore arbitrary, illogical, or unconscionable.”

Brown & Williamson Tobacco Corp., 18 S.W.3d at 191 (citing Ballard v. Herzke, 924 S.W.2d 652,

661 (Tenn. 1996); State v. Carter, 890 S.W.2d 449, 454 (Tenn. Crim. App. 1994)).

Our review of the record tells us the trial court did not abuse it discretion by denying Alton

Brown’s less than timely and incomplete Motion to Intervene. Alton Brown had been aware of the

will contest ever since his brother, Don Brown, commenced the action in April of 2000. Prior to the

first trial, Don Brown filed an unsuccessful Motion to Implead the other heirs, including Alton

Brown. After having the will contest dismissed at trial in November of 2000, Don Brown appealed.

This Court reversed the dismissal of the will contest and remanded the case for trial on the question

of undue influence. See In re Estate of Spencer Brown, No. M2002-00141-COA-R3-CV, 2003 WL

2170508 (Tenn. Ct. App. July 24, 2003). Upon remand to the trial court, Don Brown again filed a

Motion for Leave of Court to Implead Parties and Amend the Petition, in which he sought to add

Alton Brown and others as parties to the will contest. Alton Brown opposed his brother’s attempt

to implead him into the will contest. After the trial court denied the Motion to Implead, Don Brown

sought to mediate and a settlement was reached. Although Alton Brown had previously resisted his

brother’s efforts to force him to join the litigation, a month after Don Brown requested mediation,

Alton Brown decided it was time to intervene as a party in the will contest, however, he failed to

follow the proper procedure. While the incomplete Motion to Intervene was pending, the trial court

signed the order dismissing the will contest. That occurred on December 29, 2004. Yet another

month goes by before Alton Brown complies with Tenn. R. Civ. P. 24.03 by submitting a proposed

pleading setting forth the reasons for seeking intervention. Moreover, the proposed pleading was

not filed until January 28, 2005, the date the Motion to Intervene was heard, which was a month after

the will contest had been dismissed. 

Although the case had been dismissed a month earlier, the trial court conducted a hearing on

Alton Brown’s Motion to Intervene. At the conclusion of the hearing, the trial court denied the
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motion finding Alton Brown had “slept on his rights.” Considering the foregoing, we find the trial

court did not abuse its discretion by denying Alton Brown’s Motion to Intervene. 

The judgment of the trial court is affirmed, and this matter is remanded with costs of appeal

assessed against Alton E. Brown.

___________________________________ 

FRANK G. CLEMENT, JR., JUDGE