IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

Assigned on Briefs September 16, 2010

ARTHUR B. ROBERTS, ET AL. v. ROBERT BAILEY, ET AL.

Appeal from the Chancery Court for Loudon County

No. 11419 Frank V. Williams, III, Chancellor

No. E2010-00899-COA-R3-CV - FILED NOVEMBER 9, 2010

Robert Bailey, Lisa Bailey Dishner, and Richard Neal Bailey (“the Baileys”) were sued by

Arthur B. Roberts and Tia Roberts with regard to a boundary line dispute. The Baileys filed

a third party complaint against Dale Littleton, Alice Littleton, Kimber Littleton, Mark Lee

Littleton (“the Littletons”), and Charlotte Dutton seeking to quiet title to real property,

including the property involved in the boundary line dispute. The Baileys filed a motion for

partial summary judgment against the Littletons. After a hearing, the Trial Court entered an

order denying the motion for summary judgment and certifying the judgment as final

pursuant to Tenn. R. Civ. P. 54.02. The Baileys appeal to this Court. We affirm.

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

Case Remanded

D. MICHAEL SWINEY,J., delivered the opinion of the Court, in which HERSCHEL P. FRANKS,

P.J., and JOHN W. MCCLARTY, J., joined.

Katherine M. Hamilton, Knoxville, Tennessee, for the appellants, Robert Bailey, Lisa Bailey

Dishner, and Richard Neal Bailey.

Bianca F. White and Thomas M. Hale, Knoxville, Tennessee, for the appellees, Dale

Littleton, Alice Littleton, Kimber Littleton, and Mark Lee Littleton.
OPINION

Background

This case is before us with regard to the third party complaint filed by the

Baileys seeking to quiet title. The Baileys filed a motion for partial summary judgment. The

Trial Court found that “for purposes of the Motion, the parties agree that the material facts

are not in dispute and the chain of title as set forth in the third party complaint and exhibited

thereto is admitted.”

There are a few critical facts with regard to the motion for partial summary

judgment. In October of 1918, C.B. Bowling and his wife conveyed to N. B. Bailey and his

wife, Pearl Bailey, a tract of real property consisting of around 100 acres. N. B. Bailey died

in 1948 seized of the real property at issue in this case and leaving his wife, Pearl Bailey, and

four children. In their brief in support of their motion for partial summary judgment, the

Baileys alleged, in pertinent part, that the 1918 deed conveying the 100 acre tract to N.B.

Bailey and Pearl Bailey created a tenancy by the entireties despite the fact that the deed was

given during “the gap years between the emancipation of women and the enactment of the

Bejach statutes [that stated that tenancies by the entirety were not abolished in Tennessee.]”

After a hearing on the motion for partial summary judgment, the Trial Court

entered an order on March 30, 2010 denying the motion and holding, inter alia:

The rule of Gill v. McKinney, 140 Tenn. 549, 205 S.W. 416 (Tenn. 1918),

having been reaffirmed in Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695

(Tenn. 1956), has never been overturned by the Tennessee Supreme Court. As

a result, the property the subject of the Motion was owned by Nubert Bailey

and wife Pearl Bailey as tenants in common.

The Trial Court certified its March 30, 2010 order as a final judgment pursuant to Tenn. R.

Civ. P. 54.02. The Baileys appeal to this Court.

1

 We recognize that the denial of the Baileys’ motion for partial summary judgment may not have 1

been appropriate to have been certified as a final judgment pursuant to Tenn. R. Civ. P. 54.02. If it was not

appropriate for the Trial Court’s order to have been certified as a final judgment pursuant to Rule 54.02, we,

in the interest of judicial economy, allow this appeal to proceed as an interlocutory appeal. 

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Discussion

Although not stated exactly as such, the Baileys raise one issue on appeal,

whether the Trial Court erred in finding that the property acquired by Nubert Bailey and Pearl

Bailey was held as tenants in common and refusing to grant summary judgment.

Our Supreme Court reiterated the standard of review in summary judgment

cases as follows:

The scope of review of a grant of summary judgment is well

established. Because our inquiry involves a question of law, no presumption

of correctness attaches to the judgment, and our task is to review the record to

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

Procedure have been satisfied. Hunter v. Brown, 955 S.W.2d 49, 50-51 (Tenn.

1997); Cowden v. Sovran Bank/Cent. S., 816 S.W.2d 741, 744 (Tenn. 1991).

A summary judgment may be granted only when there is no genuine

issue of material fact and the moving party is entitled to judgment as a matter

of law. Tenn. R. Civ. P. 56.04; Byrd v. Hall, 847 S.W.2d 208, 214 (Tenn.

1993). The party seeking the summary judgment has the ultimate burden of

persuasion “that there are no disputed, material facts creating a genuine issue

for trial . . . and that he is entitled to judgment as a matter of law.” Id. at 215.

If that motion is properly supported, the burden to establish a genuine issue of

material fact shifts to the non-moving party. In order to shift the burden, the

movant must either affirmatively negate an essential element of the

nonmovant’s claim or demonstrate that the nonmoving party cannot establish

an essential element of his case. Id. at 215 n.5; Hannan v. Alltel Publ’g Co.,

270 S.W.3d 1, 8-9 (Tenn. 2008). “[C]onclusory assertion[s]” are notsufficient

to shift the burden to the non-moving party. Byrd, 847 S.W.2d at 215; see also

Blanchard v. Kellum, 975 S.W.2d 522, 525 (Tenn. 1998). Our state does not

apply the federal standard for summary judgment. The standard established

in McCarley v. West Quality Food Service, 960 S.W.2d 585, 588 (Tenn. 1998),

sets out, in the words of one authority, “a reasonable, predictable summary

judgment jurisprudence for our state.” Judy M. Cornett, The Legacy of Byrd

v. Hall: Gossiping About Summary Judgment in Tennessee, 69 Tenn. L. Rev.

175, 220 (2001).

Courts must view the evidence and all reasonable inferences therefrom

in the light most favorable to the non-moving party. Robinson v. Omer, 952

S.W.2d 423, 426 (Tenn. 1997). A grant of summary judgment is appropriate

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only when the facts and the reasonable inferences from those facts would

permit a reasonable person to reach only one conclusion. Staples v. CBL &

Assocs., Inc., 15 S.W.3d 83, 89 (Tenn. 2000). In making that assessment, this

Court must discard all countervailing evidence. Byrd, 847 S.W.2d at 210-11.

Recently, this Court confirmed these principles in Hannan.

Giggers v. Memphis Housing Authority, 277 S.W.3d 359, 363-64 (Tenn. 2009).

Effective in January of 1914, our General Assembly enacted a statute

emancipating married women, which, in its current iteration provides, in pertinent part:

Married women are fully emancipated from all disability on account of

coverture, and the common law as to the disability of married women and its

effects on the rights of property of the wife, is totally abrogated, except as set

out in § 36-3-505, and marriage shall not impose any disability or incapacity

on a woman as to the ownership, acquisition or disposition of property of any

sort, or as to the wife’s capacity to make contracts and to do all acts in

reference to property that the wife could lawfully do, if the wife were not

married, but every woman now married, or hereafter to be married, shall have

the same capacity to acquire, hold, manage, control, use, enjoy and dispose of,

all property, real and personal, in possession, and to make any contract in

reference to it, and to bind herself personally, and to sue and be sued with all

the rights and incidents thereof, as if the wife were not married.

Tenn. Code Ann. § 36-3-504(a) (2005).

Our Supreme Court discussed the statute emancipating married women in the

1918 case of Gill v. McKinney and instructed:

We think the Legislature intended to abolish estates by the entireties by

the foregoing act. We also think that the language employed by it directly

effects that result. The estate is an incident of marriage which grew out of the

legal union of husband and wife. It arose from the disability of the wife on

account of marriage, and cannot exist without it. Because she had no legal

existence she could not take an equal moiety with her husband, but being

named with him as grantee in the deed, it was so unjust for her not to take at

all, the judges thought she must take in event she survived her husband. In that

case her legal existence would be restored to her and she could enjoy the land

conveyed in the deed. So the estate is a creature of the common law, and is an

incident of marriage; this being true, when the Legislature abolished the

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“common law as to the disabilities of married women” and its “effects on the

rights of property of the wife,” it must have included this particular estate. The

act further declared “that marriage shall not impose any disability or incapacity

on a woman as to the ownership, acquisition, or disposition of property of any

sort.” By express language of the statute such “disability” or “incapacity” as

to property was totally abrogated. We think this necessarily included estates

by the entireties.

Gill v. McKinney, 205 S.W. 416, 418 (Tenn. 1918).

Effective in April of 1919, our General Assembly reestablished tenancy by the

entireties by enacting a statute, which, in its current iteration provides: “Nothing in § 36-3-

504 shall be construed as abolishing tenancies by the entirety.” Tenn. Code Ann. § 36-3-505

(2005).

In 1924, our Supreme Court again discussed the statute emancipating married

women and stated:

Extended discussion of the doctrine of estates by entirety will serve no

purpose. The effect of [Tenn. Code Ann. § 36-3-504], was to abolish such

estates until restored by a subsequent act. Gill v. McKinney, 140 Tenn. 549,

205 S.W. 416; Kellar v. Kellar, 142 Tenn. 529, 221 S.W. 189. Lifting the

disabilities of coverture removed the legal unity from which the estate by

entirety was implied.

Hicks v. Sprankle, 257 S.W. 1044, 1045 (Tenn. 1924) (citation omitted). Thus, as recognized

in the compiler’s notes to Tenn. Code Ann. § 36-3-505, “there is a hiatus in the estate of

tenancy by the entireties, which extends from January 1, 1914, to April 16, 1919, and affects

deeds executed in that period.” Tenn. Code Ann. § 36-3-505 (2005) (Compiler’s Notes).

In the case now before us on appeal, the operative deed, i.e., the 1918 deed

from C.B. Bowling and his wife to N. B. Bailey and his wife, Pearl Bailey, was given during

the “hiatus in the estate of tenancy by the entireties.” Id. Thus, N.B. Bailey and Pearl Bailey

did not take title as tenants by the entireties.

The Baileys argue on appeal, in part, that our Supreme Court “implicitly

overruled” Gill v. McKinney in the 1974 case of Robinson v. Trousdale Cty., 516 S.W.2d 626

(Tenn. 1974). The Robinson Court discussed the statutes at issue, both the one emancipating

married women and the one reestablishing tenancy by the entireties, and surveyed the case

law in Tennessee with disfavor. Id. The Robinson Court specifically stated:

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We do not believe that the common law disability of coverture has any

sanction in our jurisprudence or any relevance in our society. At best it is

outmoded; at worst oppressive and degrading.

* * *

The fact that Tennessee clings to the common law concept of coverture

casts a shadow of doubt upon the intellectual consistency of our approach to

the whole area of equality of the sexes, and points up the need for bringing this

phase of our law into harmony with modern thinking.

We hold that the Married Women’s Act (Ch. 26, Acts of 1913), fully

and effectively eradicated the common law disability of coverture and that the

amendatory act, Chapter 126, Acts of 1919, did not have the legal effect of

restoring it.

We abolish the last vestige of the common law disability of coverture

in Tennessee.

We do not abolish the estate of tenancy by the entirety, but we strip it

of the artificial and archaic rules and restrictions imposed at the common law,

and we fully deterge it of its deprivations and detriments to women and fully

emancipate them from its burdens.

From this date forward each tenant shall have a joint right to the use,

control, incomes, rents, profits, usufructs and possession of property so held,

and neither may sell, encumber, alienate or dispose of any portion thereof

except his or her right of survivorship, without the consent of the other. Any

unilateral attempt will be wholly and utterly void at the instance of the

aggrieved tenant and any prospective purchaser, transferee, lessee, mortgagee

and the like will act at his peril.

Robinson, 516 S.W.2d at 631, 632.

While the Robinson Court showed disfavor for the state of the law in

Tennessee with regard to the issue then before it, the Robinson Court did not have before it

the issue of whether title taken by a husband and wife during the gap years, i.e., from January

1, 1914, to April 16, 1919, could have been taken as tenants by the entireties. Instead, the

Robinson Court dealt only with the issues of “the rights, benefits and privileges of the

tenants, the right of a tenant to convey his or her interest, and the common law disability of

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coverture” with regard to property held as an estate by the entireties. Id. at 627.

In essence, what the Baileys are requesting this Court to do in this appeal is

overrule the Supreme Court’s holding in Gill v. McKinney This we cannot do. It is not the

role of this Court to attempt to overrule Supreme Court precedent. If the Supreme Court’s

holding in Gill v. McKinney is to be overruled and reversed by a Tennessee court, it must be

the Tennessee Supreme Court that does so.

Given the law as it exists in Tennessee, we find that the Trial Court did not err

in finding:

The rule of Gill v. McKinney, 140 Tenn. 549, 205 S.W. 416 (Tenn. 1918),

having been reaffirmed in Moore v. Cole, 200 Tenn. 43, 289 S.W.2d 695

(Tenn. 1956), has never been overturned by the Tennessee Supreme Court. As

a result, the property the subject of the Motion was owned by Nubert Bailey

and wife Pearl Bailey as tenants in common.

As such, the Baileys were not entitled to summary judgment to quiet title. We, therefore,

affirm the Trial Court’s March 30, 2010 order.

Conclusion

The judgment of the Trial Court is affirmed, and this cause is remanded to the

Trial Court for collection of the costs below. The costs on appeal are assessed against the

appellants, Robert Bailey, Lisa Bailey Dishner, and Richard Neal Bailey, and their surety.

_________________________________

D. MICHAEL SWINEY, JUDGE

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